Please the court. The Colorado Supreme Court held that president donald j. Trumps constitutionally disqualified from servi apresident under Section Three of the 1h amendment. The Colorado Supreme Courts decision iwrong and should be reversed for numerous independent reasons. First reason is that President Trump is not coveredy Section Three because the president is not an oic of the United States as that term is used throughouthe constitution. Officer of the United States refers only to appointed officials and it does not encompass elected individual such as the presiden or members of congress. This is clear from the commissions clause, the impeachmenclse and the appointments clause each of which uses officers of the unit states to refer only to appointed and unelected officials. The second reason is that Section Three cannot be used to exclude a presidenalandidate from the ballot even if that candidate is disqualified from servin as president under section rebecause congress can lift that disability after the ndate is elected but fo he takes office. State cannot exclude any candidate from federal office from the ballot on account of Section Three and any state that do s is violating the holding of term limits by altering the constitutis qualifications from federal office. The coloradsueme courts decision is no different from a state residency law that requires members ocongress to inhabit this day prior to ection day when the constitution requires only that members of congress inhabit the state they represent when elected. In both situations, a state is accelerating the deadline to meet a constitutionally imposed qualification and is thereby viatg the holding of term limits. And in this situation, reeling from this court that affirms the decision below would not only violate term limits but ta away the votes of potentially tens of millions of americans. I welcome the courts questions. Jutice thomas mr. Mitchell, y did not spend much time on your argument withespect to whether or n Section Three is selfexecuting. Would you address that and in doing that, you ur argument is that it is not selexuting but in that case but with the ro of the state b or is it entirely up to congress to implement the disqualification in Section Three . Mr. Mitchell it is entirely up to Congress Justice thomas and their argument gs beyond at Section Three is selfexecuting. You need to sameorthan that because a nonselfexecuting constitutional provision normly can still be enforced by a state if it chooses to enact legislation. The holding of griffincase goes beyond that by saying a stay is not allowed to implement force of sti three of the 14th amendment unls cones enacts implementing legislation allowing them to do so. Under griffins case, which we belie correctly decided, erwould not be any role for the state in enforcing Section Three unless congress was to enact a statute that gave that authority. What if someone came intohe secretary of States Office and said, i took the oath specified Section Three, i participated in insurrection and i want to b on the ballot. Does the secretary of state have the authority in that situation to say n yr disqualified . Mr. Mitche the secretary of state could not do tha consistent with term limits. Even if the candidate is an mitted insurrectionist it allows Election Office and see whether congress lis the disability after the eleio this happen frequently when confederate insurrectionists were elected to congress and sotis ty had a waiver and sometimes they did not. Each house is the sole judge of the qualifications of its members. If the state band even an admitted insreionist to the ballot it would be adding to a altering the constitutions qualifications for office because under Section Three the candidate need only qualify during the time the candidate holds the office to which he has been elected. The secrety state would be demanding cerally that the congresspid a waiver obtain a waiver fromoness. Chief Justice Roberts even though it is unlikely or would be difficult for an individual that says i am an insurrectionist and i had taken the oath, that would require two thirds of votes in congress. Right . Mr. Mitchell correct. Chief Justice Roberts that is an unlikely scar. Mr. Mitchell but no secretary oftate is allowed to predict a waiver because in doing so they are adding a qlication to the ability to run for congrs. The proper analogy is theta residency law because the constitution says a member of Congress Must inhabit the state he represents when elected. The lower courts have all held a reliance on term limits that an official cannot move that deadline any earlier by requiring a candidate of congress to inhabit the state chief Justice Roberts even if a candidate says i am a resident iiana and i have been all life and i want to run for office in illinois, the secretary of state cannot say you cann . Mr. Mitchell the question wod be is the person going to inhabit the state when e election is held. If the candidate makes cle perhaps through a dlation or through a statement that he has intention of relocating to that state before election day, then the secretary o state would be enforcing and it stand constitutional qualification rather than enforcing a new ste imposed qualification and that is the key under term limits. Is this day and anyway alterin the criteria for a federal office either for congress or the predey . In ts situation the colorado pre court is going slightly beyond what Section Three requires because Section Three on phase bands and insurrectionist from holding you admitted that the concept of selfexecuting does generally permittates to provide a cause of action for breaches of a constitutional provision. In fact, they dot frequently. Here there is no debate that colorado has placed or provided atause of action. You want to go a step further and say that this, like the treaty clause, requires implementing legislation to permit the state to disqualify and insurrectionist. Under Section Three. Mr. Mitchell that is correct. Juicsotomayor history proves a lot to me and my colleaguesenerally, there are a whole lot of examples of states relying on Section Three to disqualify insreionists first stage offices. Andoure basically telling us that you want to go two steps further or maybe three. You want us to say that self execution does not mean what it generally mean you want us now to say it means that Congress Must permit states or requires state to stop suectionists from taking state office. D so this is a complete preemption and a way that is very rare. It is rare uerhe 14th amendment. Mr. Mitchell of courseits rare and this is a oneff situation. Justice sotomayor i dont disaeeut not with respect with the way we do find selfexecuting. Mr. Mitchell we are not asking the court to redefine the concept of self execution. Justice sotomayor now the question is a very different one in mmi. I understand what you are relying on, griffins. Lets be clear. It was not a president ial Supreme Court decision. It was a Circuit Court decisn by a justice who when he becomes a justice writes t davies case he assumed that Jefferson Davies ulbe ineligible to hold any office rticularly the psincy and treated, andhiis his own words, second Section Three as executing itself meinno legislation on the part of ngss to give it affect. You are relying on a nonpresident ial case by a justice who takes back what he said. Mr. Mihe the k pnt for griffins case and why it is an importantrecedent, it is not a president of this court but it provided the backdrop against which congress legislated e enforcement act of 1870. Justice sotomayor it did away with that later. It has nothing to say wh respect for what Section Three means. Can we get to th iue which is i think one i go back to that i started with and very briefly what sense does it say that states cnoenforce Section Three against their own ficials . I think logically those are two separate issues in my mind. States and force the insurrection clause against their own fiholders or can they enforce it against federal officials . Or can they enforce it ainst the president . Those are all three differe questions in my mind. Mr. Mitchell and the answer to l three of those questions depends on whether this court agrees with griffins case. If griffins case is the proper annunciationf e law than the state cannot do any of the things your honor suggests unless Congress Gives it the authority to do so. Justice sotomayor a president ial decision that relies on policy ds t look at the language, does not look at the history, does not analyze anything oerhan the disruption that such a suit would bring you want to credit as president ial. Mr. Mitcll because congress relied on griffins case wn it enacted the enforcementct of 1870 and established Justice Sotomayor if i may interrupt, it this sounds ke your reply brief where you are not making a constitutional commit but a statutory argument. Ishawhat you are doing here . You are not saying the cotitution gives you this rule. It is a combination of griffins case plus the way congress acted after griffins case that gives you the role . Mr. Mitchell that is exactly right, justiceag. Congress took up the invitation provided bgrfins case. E only enforcement legislation that i currently on the books is thensrection criminal casend congress made all of these decisions, the initial enactment of the enforcement act, the repeal of the provision of 1948, they were all made with griffins case as the backdrop. The unrsnding was that these remedies would be exclusive of state court remedies so there is not an express thereid not need to be because griffins case provided the backdrop. Justice kagan suppose we told all of that away, suppose there were no griffins case and there were no subsequent congressional enactment, but do you then think the rule would be . Mr. Mitchell i is a much harder aumt for us to make becauseormally i mean every other provision of the 14th endment has been treated as selfexecuting. There are practical considerio unique toon three that counsels in favor of a row similar to what chief ste chase spelled o and griffins case and it goes to e policy concerns he talked about. Griffins case invvea convicted criminal who was habeas corpus on the grounds that the jge that tried his case w a insurrectionist is qualified under Section Three. The chief justiceealized that if he enforced Section Three it would nullify every offial act taken by this particular judge by anyone who wasnt insurrectionist or arguably a insurrectionist under Section Three. Why do you need these in inconsequential. Why dont you have an gunt of the constitution of its o fours . Of its own foe . Mr. Mitchell there could be an argument that is more lited. You are suggesting a barrier under the constitution to legislation for Section Three specific the fer officers and it could rely on president such as mcconkie. Justice barrett why arent you making thatrgument . Mr. Mitchell the holding of griffins caseen well beyond that. The chief justice chase provided the backdrop for the enforcement legislation attates had no role in enforcing Section Three unless congress was to give them that authority through a statue th fast. Justice barrett yr argument is a little broader than that because i think if we accept your position that disqualifying someone from the ballot is ding a qualification, really your positioishat congress nnot enact a statute because congress would be adding a qualification which it cannot doitr. Mr. Mitchell i do not agree with that. Congress is not bound by the holdg term limits. They only prohibit the state from adding additional publications or altering the constitutions requirements for federal. If congress were to enact implementing legislation that authorized the states to exclude insurrectiont om the ballot, we believe that would be valid enforcement legislation of Section Three with the important caveat that there has to be proportionality. But why would that be permissible because Section Three refers to the holding of office andotunning for office. And so, if a state or congress were to go further and say that you nn run for the office, you nn compete in a primary, wind that be adding an additional qualificaonor serving as president . You mustavbeen free from this disqualification atn earlier point in time as section threspifies. Mr. Mitchell the answer to your question dependsn how you intereenforce in section five. Some members of th court believed that enforcmes you can do nothing more than enact legislation that mirrors the. That is not the current juspdence of this court. Juice alito we wouldet into the question of whether that would be congruent and proportional. Let me shift gear, i take you to argue and i in you are right. The term selfexutg is a misnomer as applied her very often when we use the term what wereeferring to is the proposiothat a particular provision of a constitution or a statute creates a private right of action. That is not the issue here. Mr. Mitcll and sometimes the phrase selfexecuting is use that way but i would add that sotis selfexecuting treaties the issue is whether it has any force and domesc law. Justice alito i dont see wh is gained by using this term. What is involvederis the question of whether of whom can enforce Section Three with reect to a president ial candide. Thcoequences of what t Colorado Supreme Court did, some people claim, would be quite severe. Would it not permit would it not lead to the possibility tha other states would say, using their chcef law rulesnd their rules on collateral estoppel, that there is nonmutual collateral estoppel against former presintonald trump. So the decision of the colorado supre court could affectively decide this question f my other states, perhaps all other states. Could it not lead toha consequence . Mr. Mitchell i dot think so because colora l does not regne. And i believehereclusive effect of that decision. I think your question,usce alito, gives rise to a great concern. If the decision does not have effect on other lawsuits would have another possibility. Different factual fdings would be entered by state Trial Court Judges and they might conclude as a matter of fact that President Trump not ha a intent to engage in incitement or make some other finding different. Justice alito exaly in this decision, the trial court in colorado thoughtt was proper to admit the january 6 report and it also admitted the testimony of an expert w testified about the meaning of certn rds and phrases to peop w cmunicate with and among extremists. Another state court could reach an opposite conclusion. Othe states could conclude that the january 6 report was admissible hearsay and they might concle at the statements within the january 6 report are hrs. And they could ctaly have a different conclusion than the expert testimony of the professor. Perhaps they could produce their own witness. Justice alito should these considerations be dismissed as inconsequential or do they support a structural argument that suprtthe decision you are taking . Mr. Mitchell i think they mutuly enforce each other. We have an argument we believ it is sufficient to dispose this case just based on meaning of officer of the stage. All of the considerationsre additional reasons to reverse the Colorado Supreme Court although we dont think it is necessary to get into consequences because the law is on our side. You keep saying term limits but there are other president ial qualifications in th constitution, age, citizenship and the 22nd amendment that does not permit anyone to run for a second term. We have a history of states disqualifying n all but some of disqualifying candidates o would not b of age if elected. We have aistory of at least one state disqualifying someone who was not a u. S. Citizen. Are your arguments limited to Section Three . Mitchell not quite the question is whether the ste violating term limits by adding two or altering the extent qualifications for the president and the constitution. Justice sotomayor so you want t say im wondering why the term limit qualification is important to you. Are you setting up so if some president runs for a third term. A state cannot dqualify him from a ballot . Mitchell of course is taken disqualify him from the ballot because that is a cash that is categorical. A stay is enforcing the constituonhen it says you cannot appear on our bell if you have already svethrough two terms. Justice sotomayor same if they are not a u. S. Citizen. Mr. Mitchell age is more nuanced becae u could imagine a scenario where the person is 34 euros old at the time of the election what he terms turns 35 before d inaugurati. Justice sotomayor that would come before us at some point. We would have to decide that question then. My point is so adding qualifications to what term limit is your argument based on . Mr. Mitchell i will start with the age example. If a state like colorado says you cannot appear on our president ial ballot unless you ar35 on the day of the election that would be a violation of term limits because ercould be a 34yearold on the day of theleion who rns 35 before inauguration day. What colorado where there sueme court has done here is similar. Under Section Three President Trump needs to qualify during the time he would hold office and the coloro preme court is send a President Trump, you have to show that you would qualify under sti three now at the time of the election or at the time that we the supr court a point of clarification. When you say term limits you mean our decision and the term limits case. Mr. Mitchell the u. S. Term limits versus thorton. Does it have something to do with the fact that the particular circumstance you are talking about can change . Im trying to understand the distinction between the provisioinhe constitution that relates to the qualification on the basis of insurrection bavr and these otr provisions that justice sotomayopots out. They all seem to me to be x stand constitutional requirements. But you are drawing a distinction. Mr. Mitchell because some are categorical. What do you mean by categorical . Whether not you are an insurrectionist mr. Mitchell because congress cali the disability by a two thirds vote. Hy does that change the initial determination of whether or not you fall into the category . I dont understand the fact that you can be excedrom having been in the category why does that n me it a categorical determination . Mr. Mitcll because we dont know if President Trump would be swn would be excused for being sworn in. And a court saying that President Trump has to show now today that he could qualify under Section Three is accelerating the deadline the constituti pvides for him to obtain a waiver from congress. That is by virtue of the hold. Mr. Mitchell correct. Now that i have the floor, n ask you to address your first argument which is the officer point . Wire be an opportunity tois . Officer stuff . Absolutely. [lau i just want to understand, on this theory, why does the sum total of ways that secti tee can be enforced . That somebody out there can say yes, there has been a fmer president who engaged or led or dissipated in an insurrectio and so should be disqualified from Office Putting aside the officer argument, what is the sum total ws that enforcement can happen . Mr. Mitchell the ansr that question will depe on what youron thinks about griffins case. If this court were taffirm the rationale of griffinca then the only way Section Three could be eord is through congressional legislation. Congress could reinstate the provision and how does that fit with a lot of the answe to the questions thate ve been given. You said congress has the ability by a two thirds ve to lift the disqualification. But so too, i would think tt provision would be in some tension with what you just said. If congresha the ability to lift the vote by a t trds majority then surely it cannot be right thaonhouse of congress can do the exact same thing by a simple majority. Mr. Mitchell there certainly is some tension. And some commentators he pointed that out. Justice kagan then i must be right. [laughter] mr. Mitchell we dont think the problem fal. Though t trds provision that allows cones to lift a disability is something they can do a part in power. Congress can create a mechanism by which the insurrection issue could be determined by some entity, each house that has the abity to judge the qualifications of the members or in a decision from congress it would be whatever congress enacts. Each feral prosecutor had the authority to bring the writ against an incumbent offici and seek his ouster from office under Section Three b it was still subject to the amnes provision in Section Three of the 14th amendment. We acknowlge the tension but do not think it i insurmountable obstacle. If would analogize the lifting by congress of the disqualification by a two thirds vote to a pardon, then surely we would not argue that the fact that the president or governor can pardon someone from a criminal convictioor criminal offense mni the person could not be prosecuted in the first place for the criminal offense. Mr. Mitchell that is right. I dont see the tension, there are two separa tngs. Did the personnge in the act . And even i the person did, are there reasons the disqualification shod be lifted or the pardon should be grante mr. Mitchell if the Court Accepts the griffins case that wod the ridging that we have. Chief Justice Roberts i dont know if there is a limit that one on somethg at someone can infer t that what you are doing . The intention would be that you would have the exact same actor and say the actor can lift the disqualification by a two thirds vote. And you are saying only that actor can put the disqualification into fe in the first place and it can do that by far less than two thirds. It can do that by a sple majority of one house. R by doing nothing at all if the holding of griffins case is correct. Exactly. Ste kagan the only thing it takes to have no action is half plus one saying we dont file feel like it. Mr. Mitchell we were reing on preemption documents as well. The griffins case is also important to figure out the original public meaning of Section Three of the 14th amendment. That seems to me highl probative are of what the meaning or understanding of what that otherwise elusive languages. Mr. Mitchell we did not rel too heavily on the point you are making partly because weav this other opinion from justice chase in the Jefferson Davis case. That argument could potentially boomerang on us which is why we did not push it hard on our briefing. Justice kavanaugh i want to let you finish that since that sentence. Mrmihell it migh be relevant and it might undercut case is completely emblematic of what we are trying to point Justice Jackson i had a question because you are making a contextual list argument. As i look at Section Three i see two partsf e first sentence of Section Three. The firsts a list of offices that a disqualified person is barred from holding and second are specific circumstances that give rise dqualification. First, am rightbo seeing that there are two Different Things happening in sentence one . Are you arguing both or just one . Are you arguing both at the office of the presidency should not be considered one of the barred offices and that the a person that previously took a president ial oath is n sject to disqualification . Mr. Mitchell we are arguing both. Justice jackson dt see that in your brief. Mr. Mitchell there is a focus on the second and we had knowledge that we have a heavier lift on the first. Justice jackson why . It seems you have a list on the president is not on it. Mr. Mitche it every time it appears it is used in a way that excludes Justice Jackson the first argument is that we have a lt of offices that a person is barredro holding under your thry or under the language and we see it begins with senator representati, ector of the president and Vice President , and all others civil or military offices. Fices under the United States. But the words president and Vice President do not appear specifically on that list. Im trying to understand are you giving up that argument and if so why . Mr. Mitchell the president and Vice President a not specifically listed but the anderson litigants and do you agree that the framers wouldve put such a highend significant and Important Office or smuggled it in through that catcha pase . Mr. Mitchell we dont agree at al that is why we are making the argument that the president is excluded your brief says you did not make a position a position on that point. Your brief, i dont have the site and i apogi for that, but you do not affirmatively argue that point i think is what your brief said. Mr. Mitchell we certainly aredt in a reply brief. We did point out in our opening brief that there areottial issues at this court would rule under because that phrase appears in other parts of the constitution including the impeachment disqualification clause i thought the point was that Section Three was unique. That treas something happening with Section Three that could explain why certain offices were left off or atnot. Mr. Mitchell perhaps but there are also implications in other partofhe constitution which really helps us with the of the officer of the United States if this court were to say that the presidency is anxcded office under the United States that could apply at the president is not cover the a lot hinges on the difference between come in your argument,eten the wds office and officer. An i guess im wondering what theory do you have from the iginal understanding or from a textual list perspective why those two terms so closely related would carry such different weight . Tchell becauset is clear from the text that there are officers that do not hold offices under the unit states for example the speaker of the house and the president pro tempore who are described as ofcers in article 1 chosen by the legislature. They also have to be officers if they areblto be covered by the president ial succession act. The officers conserve when tre is a vacancy in the presidency and vice presidency. They are not officers under the United States. Ifou are a member of congress you cannot simultaneously hold an office under the United States. That provision demonstrates that a member of congress cannot hold Office Justice gorsuch ippreciate that response. Is there anything in the original drafting history discussion that illuminates why that distinction would carry such weight . Mr. Mitchell not tt we are aware so tsere textual inferences that we are drawing but we areot relying necessary on the thought processes of these people that draft does because th a unknowable. This languag eecially Section Three, was enacted as a compromise. There were radical republicans that wanted to gouch further if you look at some of the earlier drafts proposed. Some people wanted to ban all insurrectionists from Holding Office and some wanted to go further and banned them even thank yousel. I have one technical question. The statute of 1870, if it were still in effect, would require you to modify your arguments slightly. It was repealed as you said in 1948. I tried fd it. Do you kw y it was repealed . Mr. Mitchell t oks like it was done as part of reorganization of the United States code. I think a lot of things got repealed in that. Justice chief Justice Roberts Justice Thomas, any further . Is there any evidence of other states using Section Three towbar to b. Tchell not that i am aware. Thank you. Justice sotomayor i would like to condone youprcipal argument on Section Three. Even though the president may or may not qualify for the presidency may omay not qualify asn fice of the unitedtates, your principal argument is that the president is not an officer of the United States, correct . Mitchell i would say it more forcefully than what you described. We believe the presidency is excluded from offi uer the United States but the argument that he is excluded is the stronger of t two textually. Juste tomayor a bit of a gerrymandered re designing it to benefit your client. Mrmitchell i would not use the term gerrymandered as that would suggest faous Justice Sotomayor only the petitioner is disqualified beus virtulyvery other president except washington has ken an oath to support the constitution, correct . Mr. Mitchell and john adams might also be excluded. President biden he took an oath as member of ngss and it is true of every previous president. Justice sotomayor would that be truef we were to hold more narrowly in a reversal that it is not Section Three that is at issue but as to whether Section Three could be enforced by states against the president . That would extend every president ial candidate. Justice sotomayor exactly. Thank you. Justice kagan given you said you dont have a lot of evidence at the founding generation is really thinking about offic versus officer of the United States, it wouldugst that we should ask if that rule is a senslene . They had thought about it, what reason would they give for at rule . It does seem there is no particular reason and you could think of lots of reasons to the contrary does say that thon people who have engaged in insurrection w a not disqualified from office are president s who have not held high office before why would that rule exist . Mr. Mitchell i dont think there is a good rational given this is compromise legislation. If there is an agrdon set of words that can pass both housesf congrs but different legislats y have had hes and they did not get their way this was the text settled upon. And it would seem odd that President Trump would fall through the cracks in a sense. But there is no way that he can be covered under Section Three. Justice kaga is there any better reason hgoes tohe office argument that Justice Jackson was suggesting, is there any better reason then saying that an insurrectionist could not hold the whole panoply of offices in the United States that we are perct fine with that insurrectionist being presen mr. Mitchell i think that is the tougher argument for uto make from a policy matter. Of all offices that would be the e off as you would like to keep an insurrectionist out of. It is why we are leaning we are not conceding officer under but we deftly have a stronger textual case. Justice gorsuch i want to respond to some of the specific textual arguments on the officer of with the importance of the clauses. I wanted to see where you landed today. Mr. Mihe there are three textual inferences that can be drawn. But it does not say that the President Shall commission l the officers of the united stat. Xiao is mandatory. He cannot commission himself. That is one of the first obms. The anderson litigants, i think at theyre trying to say is e esident cannot commission himself we also havmeers of congress who are not commison by the president and that is because they are not officers of the United States. The only sensible distinction we n see given the language is that offices of thuned States Officers of the United States are appoied officials. In the impchnt clause enforces that. The president and the Vice President are lisd parately from officers of the United States and the appoimes clause, we know the president is t appointed nor is a Vice President nor are members of coress. They cannot be officers either. Justice gorsuch and how does article one section six fit into the discussion . Mr. Mitchell you have to be an officer toe line of succession. We have a federal statute that puts the speaker and the president pro tem fr in line of succession. They are officers but not of the United States because they are not subject to impeachment. There is a is a gap between the term officer andhe phrase officers of the United States reinforcing the ideth officers of the United States e art it does not just referr tfederal officeholders. Justice kavanaugh to make sure i understand how you are using griffinca. Section three refers to insurrectionnd raises questions about who decides what processes are to be used that were ratified in 1868. The next year chief justice chase opines that stat dnot have the authority and that ly congress has the authority to enforce that that could be evidence as you say of the original public meaning . Your point is that it is inforced because congress relies on that precedent in the enforcement act of 1870 and forms the bacroagainst which congress does legislate and as justicalo says, the historical practice for 155 years has been that has the way it has gone where there have not been stated times trying to enforce disqualification under Section Three against federal officers . Whether that is a fedal liquidation do you want to add to that or alter that . Mr. Mitchell that is exactly right and the last part is crucial to our argument. Congress rie on griffins case andt provided the backdrop against which they legislated which is why we shldead these mechanisms. It is a form of implied preemption. Because congress made these decisions in explicit relice on griffins case. Justice kavanaugh and if agree with you on griffins case and what you are elarad on there, that is the end of the case, right . Mr. Mitchell unless congress decides to enact a statute. Justice kavanaugh a new and under you agree that somee could be prosecuted for insurrection by federal prosecutor and if convicted, could be or shall be disqualified then from office. Tchell the only caveat would be at our client is arguing that he has president ial immunity so we should we would not concede. Justice kavanaugh understood. Justice barrett griffins case was a collateral proceeding. Could griffin have even if Section Three is not a basis for collateral release in habeas which was new at the time, could griffin have raised at his trial or indirect appeal the argument that judge chaffee you cannot legimaly sit on my case because you are an insurrectionist and disqualified could he have won then . Mr. Mitchell not if griffins case is correct. The court would haveo ject the rationale of griffins case. Justicbaett ihi there is some language that might be a little broad but at bottom griffins case is about a coatal habeas proceeding. Griffin had brought his case after the fact, he needed a contract shouldnt. Why ulit not work in a trial for him to challenge chaffees constitutional ability to adjudicate the case . Mr. Mitchell griffins case holds that only congress can provide the means of enforcing Section Three. He would have to await legislation from congress. Justice barrett lets assume i disagreeityou about the offir argument so Section Three covers President Trump. Lets say that congress and arks provision that would allow a state tbring such an action against him to remove him from office. Wouldnt that be in some tensn with impeachment . He would be extracted from office outsidef e process of impeachment. Codt then President Trump simply say, the only way to get me out of office is the impeachment process and not this action . Mr. Mitchell i dont know how that would plaoubecause the action that i am aware of under the 1874 enforcement act requires. Your impeachment hypothetical would apply only in the present to any officer. I dont know how that played out in courts and if anyone tried to are at impeachment is the only remedy Justice Barrett you said it is congress eluve province and you also said it has t imply only after someone is holding the office and im asking if your implication is that congrescod not enact such as opposed to a state one. Mr. Mitchell thempchment clause says the president , the Vice President a t law officers of the United States cant should be removed. Congress can defund a position and effectively the other relevant precedent is against laird where th jeffersonians appealed the midnight judges act. Someeoe thought that was unconstitutional the chief justice upheld that. That to me as a relevant president showing peachment is not the only way to get rid of a federal official. Justice barrett does president trp have a te of due process right here this goes more to the question of what procedures he might have been entitled to. You dont ma t argument that he had any kinof constitutionally protected right to ballot accs and constitutionally entitled to a right to be heard . Mr. Mitchell we made that argument below but n tthis court. The proceedings quite charitably were highly irregular. E question seems to suggest that thereight be due process issues but we did not develop that for this court for several reasons. It does not do as much for our client. Justice jackson going backo i guess im just surprised with how you are replying to Justice Kagan. I did not see any evidenceha the presidency was top of mind for the framers whenhewere drafting Section Three because theyeractually dealing with a different issue. The pressing concern, at least as i see the historical record, wa actually what was going on at lower levels of the government. The possible infiltration of emddg iurctionist into the State Government apparatus and the real risk that former coederates might return to power in the south via statelevel election either at local offices or as representatives of the state in congress th ia very different lens. You areonrned that these people that seems to me very different than the worried that an insurrectionist would take control of the entire National Government through the pridency. Im surprised you would given the context that seems to demonstrate that their concern was not about the presidency. I dont know why you are getting that argument up. Mr. Mitchell there is some exits some evidence to the just that. Justice kagan Justice Jackson is there evidence . Mr. Mitchell one of the drafts spifically mentioned the presidency and the vice presidency. Justice jackson but it was not the final action. Tchell it was not the nal enactment but it shows there was some concern about some people about confederate structuralists ascending to the presidcy we did we looked at the historical evidence and the other side can get back and throw out evidence back in our face. We focus more on the text of the constitution because this was a comprosen Section Three. Justice jackson let me ask you other qstion because you have made anarment about the states not being able to enforce Section Three if we agree, what happens next . I thoughyo wanted us to end litigation so is there a possibility of continues in del court . Mr. Mitchell i am sure how it could unlessoness enacts a statute. Justice jackson we would have to say congressional enacting leslion is necessary f either state or federal enforcement. Mr. Mitchell thaisorrect. Justice jackson the Colorado Supreme Court concluded the vient attempts of the petitioners in this case to hol the count on january 6 qualifies as insurrection as defined by Section Three. I read your opening brief to acpt that those events coted as insurrection. Your reply seems to suggest they are not. What is your position . Mr. Mitchell we never considedhis was an insurrection. What we said is President Trump did not engage in any act that could possibly be characteriz as insurrection. Justice jackson what is your argument that it is not . Your reply says i think you say it did not involve any organized attempt to overthrow the government. Tchell that is one of many reans the eds to be an organized effort tovthrowhe United States through violence. Justice jackson a chaotic effort is not an insurrection . Mr. Mitchell we did nocoede it was an effort to overthrow the government. Was shameful but it did not qualify as insurrection as that term is used in Section Three. Justice jackson thank you. Thank you, cose mr. Murray. Mr. Murray mr. Chief justice, we are here because the First Time Since they were 1812ou nations capal came under violent asul the attack was incited by a sitting president of the United States to disrupt the transfer of predeial power. Engagi iinsurrection against the constitution, President Trump dquified himself from public office. We heard, President Trumps main argument is this court should create a special exception to section thr that one apply to him and h ane. He said Section Three sqlifies all both baking both breakinnsurrectionists accepted former president who never before upheld held feral state or office. There is no rationale for an exemption and the court should reject the claim that the framers made an extra oiny mistake. Section the es deliberately broadanguage to cover all positions of federal power requiring an oath to the constitution they claim difference between an office under and an officef the United States buth does not come down to mere prepositions. St a the two phrases are two sides of the same coin referring to any federal offic or anyone who holds one. President trumps oer arguments for reversal ignore the role of the states in running president ial elections. Under article two, states have thpower to ensure their citizens votes are not wasted on a candidate who is cotitutionally barred from Holding Office. States are left to safeguard their ballot by excluding those who are underge foreignborn, running for a third president i term, or as here, those who have engaged in insurrection against the constitution. I welcome the courts questions. Justice om do you have coemraneous examples . Shortly after the adopti o the 14th amendment where the ates disqualified National Candidates, not its own candidates mr. Murray the oy ample i can think of is the example of commerce and christie who was elected in georgia in 1868. The governor of georgia declined to certify the results of at election becser. Christy was disqualified. Its not surprising that there are few examples because we did noha ballots in the same way back then. Candidateserright in. There would not have been a ocess for determining before an election whether a candidat was qualified, like the processes we have now states created under article one and article two powers. Justice thomas it would seem paicarly after reconstruction and after the compromise of 1877 and during the period of redeemers that you would have that kindf conflict. There were a plethora of confederates still around. There are any number of people o n for state offices or national offices. That would suggest there would be a few examples of National Candidates being disqualified if youre reading is correc mr. Murray there were national candidesisqualified by congress refusing to seek them. Justice thomas that is nothi case. Did states disqualified them . I understand congress would not. Mr. Murray other than the example i gave, no. That is not surprising because there would not have been states would not have the authority to remove Justice Thomas what wa the purpose of section thr . States were sending people the ccern was that the former Confederate States would continue being bad actors. The effort was to prevent them from doing this. You are saying this also authorized states to disqualify caides. When i am asking you for, if you are right, what are the examples . Mr. Murray the states excluded many candidates for individuals Holding State offices. We hava mber of cases of states Justice Thomas inderstand the states conolng state elections and state positions, what we are talking about our National Candidates. Are national ndates. You okt shelby foote or mcpherson they talk about the conflict after the civil war. There were people who felt very strongly about retaliating against the south, the radical republicans. They did not think about authorizing the south to disqualify national cdites. Th ithe argument you are making and what i would like to know is, do you have any expl of this . Mr. Murray many of those have filed briefs, the idea of th 14th amendment was with states and the federal government would insure rightanif failed to do so,heederal government would also step in. E reason there are not ames of estates doing this is an idiosyncratic one elections work differently. States have a background power under article two tru president ial elections. Theyidot use that power to police bloaccess until the 1890s. By the 1890s, everyone had received amnesty. Looking at justices thomas Justice Thomass question, esta sll not immunity, will not process it without due process. On the other hand, it augmented feral power. Congress has the power to enrce it. Wodt that be the last place u uld look for ahorization for the states, including Confederate States to enforce the president ial election process . That seems to be a position at wa with the whole thrust of the 14th amendment and very ahistorical. Mr. Murray we would locate the states authority not in the amendmentou in article two and that is plenary. Chief Justice Roberts you have no reliance on section thr, that what youre saying . Mr. Murray we have reliance on Section Three so fars ticle two gives states this broad power t determine how their ecrs are elected and that power implies a narrower power to force constitutional qualifications. Chief justice robes dinero power youre looking for is e power of disqualification. That is a very specific power in th14 amendment and you are saying that is implicit the exnded to the states under a clause that does not address that at all. Mr. Murray we would say nothing at the 14th amendment takes away from the states their power to determe e manner of selecting their elto in the manner they see fit. Th per is nearly plenary nearly plenary a lessening entity constitution tellstes they cannot do it. The structure of the 14th amendment was to expand federal power and restrict state power. States are bound to eor section one of t 1h amendment. It is hard to see why states would not be similarly bound. States have the power to choose eleor granted. St because there is one authorized means under the nstitution to a particular end does not mean there is any means that end. I think you are taking that electors argument and bringing it intoecon three where the chief justice says says there is no historical evidence t support the theory of Section Three, nor to explain the overall structure of the 14th amendment. Mr. Murray wceainly have a long history in this country of states usingheir power to determe the manner of selecting president ial electors enforce other qualifications in the constitution. I dont think there is a debate on whether or not states are allowed to they could be excluded under the broad article. I dont see why Section Three should be treated any different. Section 3 Justice Kavanaugh when you look at Section Three, the turn e rm insurrection jumps out and the questions are, what does that mean . How do you define it . Who cis whether someone engaged in it . What processes are appropriate for figuring out where someone did engage in that . That is what they focused on as if to say these are difficult esons. You look at the amendment and that tells you that congress has the primarro. What is different is the processes, the definition, who decides. These questions jump out when you look at Section Three. Your response to that . Mr. Murray there has to be some process for determining those estions. The question becomes does anything in the 14th amendment say only congress can create that process . Section five is not an exclusive provision. It is congress ve power. The question you have to confront is why a single ste decides who getso president of the United States. This question of whether a former president is disqualified for insurrection, just say it, it sounds awfully national. What means there are to enforce it would suggest they have to be federal, national means. If you werentrocolorado and you were from wisconsin or from michigan, with the michigan secretary of state did is going to make the difference between whether candidate a is elected or candidate b is elected. That seems extraordinary, doesnt it . Mr. Murray o, because it is ulmaly this court that will decide that question of constitutional eligibility and settle the issue for the nation. It is not unusual that questions of National Importance come up Justice Kagan this court would be saying somehi along the lines that the state has power to do it. I was asking you to go further d y why should that be the right rule . Why should a single state have the ability to make this determination not only for their noncitizens but for the rest of the ti . Mr. Murray article two gives them the power to appoint their own elecrss they see fit. If they are going to use a federal constitutional quification as a Ballot Access determinant, it is creating a federal constitutional question this court decides. If this court afrmthe decision below determini President Trump is ineligible to be president , other states would have to determine what effect that has on their own states lien procedure. Justice barrett if we said he was ineligible to be presen maybe yes. Debbie states with say wwi keep him on the ballot anyway. It is going toavthe effect of colorado deciding. I want to push bacont is a national thing because this cot ll decided. U y we have to review coloradosactual record with clear error as a standard of review. We would be stuck with that record. I dont want to get into whether the record maybe the record great. What if the record wasnt . Wh if it wasnt a whole some record . The hearsay rules. What if this is just made bth secretary of much process at all . How do we review those factual fiings . Why shoul applynd doesnt that buckle back into this point at Justice Kagan was making, with mr. Mitchell, too, that it doet seem like a state called. Mr. Murray three points, your honor. The Court Reviews factual findings f car error. President trump made e int in his reply brief that sometimes on constitutional esons that require uniform resolution, this court can do an independent review of the record. We would have no objection to that given the record here the facts that are disputed here are incredibly narrow. The essence of our case is President Trumps statements he made in public view for all to see. Justice barrett that is saying that in this context, if w review the facts, you want t watch the video of the ellipse and make a decision without any deference to or guidance from lower court factfinding . Mr. Murray President Trump himself urges this court to decide the millageths the merits of his eligibility on the fauarecord of page two. He has nert any point to suggested there is Something Else that needed to be in the factual record, any other tnesses he wanted to call. The essence of our casisis own statements. In his own videotape statements i wanted to circle bacto where Justice Kagan was. Do you agree the states the states power here over its ballot has to come from some Constitutional Authority . Mr. Murray members oth court have disagreed about that. I am asking y. Mr. Murray the majority ofhis court has said those powers come fr aicle two. We think the result is the same whether the court located in article two or reserve power of the 10th andnt. Justice gorsuch you are not asking us toetn to that it has to come from some federal cotitutional authority . Mr. Murray no, we are not. Justice gorsuch were not talking about the qualifications clause. Nobody is talking about whether he is 35 yea o or natural born. Not an issue. We are talking about something under the 14th amendment in Section Three. Thats where you have to defined your authority, right . Mr. Muay we find our authority in article two in a states power to run an election. Justice gorsuch this is a federal office and it has to come frothconstitution and you are seeking to enforce Section Three . Mr. Murray we are suggesting in theirroad power to select president ial electors they see fit, they can take account of Section Three. Justice gorsuch could they do it without Section Three . Could they disqualify somebody on any basis they want outside of the qualifications clause . Mr. Murray that would run into termimits. Justice gorsuch so it has to come back toection three. If that is true, how does that work given that Section Three speaks aboutolng office, not who may run office run for office . It seems to me that you are ki tonfce an election context. Provision of the constitution speaks of Holding Office. It is different than the qualifications because which is about who conctthe qualification clause which is about who can run and ser its about the qualification because which is about who can run and serve. Mr. Murray there is nothing constitutional about a 30yearold trying to get on the ballot. Justice gorsuch except they can get removed deSection Three. Thoutsn that . Mr. Murray heact that there is a provision for removing the disability does not ga the fact that the disability exists today and has existed since january 6, 2021 when President Trump gad in insurrection. Justice gorsuch were his actions after that date before he left office on coherence . Walter barans . Is that where your argument leads . Mr. Murray that may be the one place and a griffins case where we agree which is when the justice thai lked to my colleagues and wunimously reyou cannot collaterally attack all actions of any officer who is in fact holding the position. Justice gorsuch lets circle back to where srted. Section 3, 2 authority has to co from there. It is aboutolng office and a particular kind of disability that can be removed by congress. It is the only one like it that. They cannot remove a o citizenship. How does that form our thoughts about estates efforts to regulate the ballot for a federal oic mr. Murray the fact that congress has an extraordinary removal power does not negate that the disily exists today and exists indefinitely tohe future, much like the fact that the president can parn somebody for criminal conviction does n me that conviction somehow contingent. I wouldote if President Trump were appointed to any office today as a state judge,e uld not hold that office which sho the disability exists now. The fact atongress has power to remove the disabilityoe not negate the present qualifications. Nor does it bestow on President Trump a constitutional right to run for office is he cannot hold in violation of state law and state procedure under article there was a congressional action to commit cpetitor officers or people who supported the confederacy to hold office before the 14th amendment, correct . There must have been a thought that there was a preexistg disqualification. Mr. Murr that was right. There were a flood of amnesty requests before section thre went into place went into effect because people understood those people would be disqualified the moment Section Three was enacted unless they stice sotomayor what do you do with the consequences of your position . If colorados position is upheld, there will be qualification proceedings on the otrs and some of those will succeed. Some will haveifrent standards of proof. Some will have different rules about evidence. Maybe the Senate Report would be accepted becau iwas hearsay. Maybe it is beyond a reasobl doubt. I would expect, though my predictions have never been correct, a good number of states will say whoever the democratic candidate is, you are the ballot you are off the ballot and others, urff of the ballot. It will come down to a handful of states who decided the election. That is a dati consequence. Mr. Murray the fact that there are potential fvous applications of a provision is t reason chief Justice Roberts you might thin differently, but the people who bring them don think they are frivolous. Insurrection is a broad term. If there is debate about it, i suppose that will go into the decision and eventually if there was an insurrection when one president did something as opposed tohen someone else did Something Else, what do we do . We wait until near the time of cutting the ballots counting the ballots for which statear valid and which arent . Mr. Murray theres reason Section Three has been dormant, we haveoteen anything like january 6 since reconstruction. Insurrection against the constitution is something a short mary. Chief Justice Roberts it seems to me you are avoiding the question which is other states might have different views about what constitutes insurrection. You are saying is all right beuse somebody will decided they thought that was in insurrection but they were wrong. Maybe they thought it was right and we have to develop rulesor what constitutes an insurrection. Mr. Murray just likehicourt interprets other constitutional provio, this court can make clear that it is something extraordinary. It requires an concerted group effort to resist through violence, not some ordinary application of state or federal law, but functions mandated by Justice Kavanaug on your point that it has been dormant 155 years, thether side with safety reason is chief justices opinion in 1859 which says congress has the authority here, not be states. That is followed up by the enforcenact of 1870 which Congress Acts on that unrsnding. There is no history contrary in that period as justcie thomas pointed out Justice Thomas pointed out. There is no ame of states exercising such authority. The rean has been dormant is becsehere has been a settled uerstanding that chief justice chase was essentially right and the branches of the governmentav acted under that tain for 155 years and congressanhange that. Congre ds have section 23, the insurrection act criminal statute. Congress could change it but they have not in55ears. Mr. Murray no, the reason it has be dornts because by 18 76, all former confederates had received amnes. We have not seen anything like any insurrection since then. I would like to adyour point chief justicrts Justice Alito. Justice alito i dont know how much we c infer from the fact we have not seen anything li this and therefore concle are not going to see something in theute. From the time of the impeachment of psint johnson until the impeachment of psint clion , more than 100 years later, ere were no impeachments of president s. And fairly short order over the last decades we have had three. I dont know how much you can for omhat. Mr. Murray this court can write any opinion tt phasizes how extraordinary iurction is and how rare that is. It requires an assaultotust on the application of law but on cotitionally mandated functions. We saw and wh six a coordinated attempt to disrupt a function mandated by the 12 amendment and essential to the transf opower. Let me ask you abt the power you describe disciplinary is really plenary. Suppose the outcome of an election for president comes do tthe foot of a single at to the vote of a single state. Suppose candidate a gets a majority of the votes in that state but the legislatu ds not like candidate a and thanks candidate as insurrectionist so the Legislature Passes a law ordering to vote for the other candidate. Do you suppose the state has that power . Mr. Murray there are principles that come into play in terms of after the people have votedha the state cannot change the rules. I am not sure because im not aware of this Court Addressing it. Justice alito ets change it sot not after the election. Three days before the election based on the fact that the polls inhat state look bad. Can they do it . Mr. Murray i think they could under th courts decision when this crtmpsized for much of history state legislatures assigned electors themselv b that would be work ordinary than what we have here which is simple application of rm state Ballot Access principles to say were only going to put on an individual qualified to assume the office. Chiejuice roberts can a you the question Justice Gorsuch asked . Look at that Going Forward rather than judging t baluchi guy on the validity of any act committed bwe a time when a president llegedly engages in insurrection and leaves office. During that period, would you be lawful for militarcoanders and officers to disobey orders of the president in question . Mr. Muay i amoture anything gives military officers the auory to adjudicate the legality of the presidency. Justice alito is a he is disqualified from the moment it happens. I understand that the diff are t de facto doctrine might be used to prohibit people from using judicial remedies for decisions that take place after the date he was disqualified. If he is in fact disqualifd, from that moment, why would anybody have to obey a direction omim . Mr. Murray ultimately there has to be some procedure in place to adjudicate the qualification. Congress can impeach a sitting president but that is the only remedy for negating the authority of a sitting president. Justice alito why . Section three speaks of disqualification from Holding Office. He say he is this qualified from Holding Office from the moment it happens. Mr. Murray correct Justice Gorsuch you say there is no legislation necessary. I thought that with the o3 of your case. No procedure happens automatically. Mr. Murray you need a procedure to have a remedy to enforce the disquafition. Justice gorsuch that is a whole separate question. That is e facto doctrine. That doesnt work her hes disqualified from the moment, selfexecuting, done. I would think a person who would receive a reion from the former president in your view she whes without regard to that individual. Mr. Murray i dont think so. Justice gorsuch wipe . Why . Mr. Murray effective the de facto provision would come into play Justice Gorsuch that is not work. Put it aside. Justice alito asked a different question, i think it deserves an answer. On your theory, would anythi compel a lower oicl to obey an order from the former presen mr. Rr am imagining a situation where a former president was elected and they were 25 and ineligible Justice Gorsuch no. We are talking about section thre please dont change the poetical. I like doi i too. He is disqualified from the mont he made any insurrection, whoever he is from whateve party. That happens. It happened. What would compel try to into the question to answer the question. What would compel a lower individual to obey that invidual . Mr. Murray we have rules requiring chain of command. A person is in t office, even if they dont ve authority to call the office, the only wayo get the office of the presidency is impeachment. If you interpret section tee in light of other provisions, ile they hold office, impeachment is the only way to validate they do not have the ability to hold that office and should be r. An i ask you about something Justice Kagan brought up . Uniformity and the lack thereof if states are permitted to enforce sectiothe in president ial elections. I guess i did not really understand your argument or your response. Mr. Murray if congress is concerned about uniformity, they can provide legislation and preempt state legislio is not necessar mr. Murray it is not necessary. In the lack of either the absence federal a state adjudicateth. T state has not provided the process to comport with due process, one can make os challenges. Assuming as here we have a full evidentiary record and any opportunity to prevent evidence. Justice jackson i understand we couldnt resolve ito have a uniform ruling on it. My question is, why the framers wod ve designed a system th could result in interim th uformity we have elections pending and different states suddenly saying you are eligible and you are not on the basis of this kind of thing. Mr. Murray what they were concerned about was assuring insurreconts and rebels dont hold office. E derstands the imperative they had to ensure both breakers would not take office. It would be odd to say states account can force it cannot enforce it, only the fedel government can enforce it and congress can rip a heart out of section threby simple majority. It creates redundancy. The fact that states have th ability to enforce it absent federal preemption provides an additional layer of safeguards. Justice jackson i will ask you about story when i get a chance again. Chief Justice Roberts Justice Thomas. Justice alito. Justice alito suppose there is a country that proclaims again and again that the United States is its biggest enemy. Suppose the president of the United States for the mac reon thinks it is in the best interest of the u. To provide funds or release funds so they n be used by that country. Could a state determined that peonas given aid and comfort the enemy and therefore keep that person off of the ballot . Mr. Murray this court has never interpreted the eight and comfort language which is in the treason clause. It has been really applied because treason prosecutions are rare. Commentators have suggested that d and comfort only applies in declared war or any adversarial relationship where you there where there is in fact a war betenwo countries. The standard would do a lot of work there because under Section Three, whatever the underlying conduct is, it has to be done with the intent to further the purpose of the insurrection or aid the enemies. Ste alito let me come back to the question of what we would do if different states had adjudicated the question of whether former preside tmp is an insurreiost using a differentecd, different rulings on the admissibility of evidence, perhaps different standards of proof. What would we do . Mr. Murray if there were deficiencies in the record, the court could refuse to hear the case or decide bas o deficiencies of the record. Justice alito whave to decide what is the appropriate rule o evidence that should be applied in this case . Would we have to decide what is thappropriate standard of proof . Would be given any difree to these findings wou wgive any difference to these findings . Wod we have to have our own trial . Mr. Murray no. This court takes t edentiary record as it is given and here we have an evidentiary record agree that the parties agree it isufficient in this case. There is a possibility oan independent review of the fact. Ultimately what we have is any inrrection incited Justice Alito you are not answer my question. It is not helpful. Suppose we have o fferent records, two differt dies of evidence, two different rulings on questions of the disability, two different standards of proof, two diffentets of fafinding by two different judges or maybe multiple judges in multiple states, what do we do . Mr. Murray this court would set the legal standaranthen decide which of you the record was correct. Ste alito whi vw of what record . Mr. Murray if this court had two cases and both of the rerds were sufficient insofar as both have the opportunity to present their case, then is court would have to look at the evidence presented and decide which holding was correct and dedehat issue for the country. When there is a complete reco, the records will be applying the decion i think it is unlikely any court would say we will reach a different decision than the Supreme Court did, particularly ifheourt relies on the fact of what President Trump said on video and in his twitter feed icis the essence of our case. Justice alito you had an expert testified about the meaningf what President Trump said. Do you think it is possible in a diert stateou a differenste court would apply to alberta differentlan say this person should not be allowed to express an Expert Opinion on that question . Do you think that is beyond the rem imagination . Mr. Murray . Not at all. Mber one, President Trump did not appeal the admissi othat evidence. Number two, the point is producing me did not opinen the meaning of troubles words, on the effect tse wordsad on extremists. Thessence was around videotaped statements of trump himself encouraging andraing political violence. Justice alito i am not taki a position one way or another abt wheth t experts testimony should have been admitted or anything like tt or the meaning of President Trumps words, i am trying to get you to grapple with what some people ha seen as the consequences of the argument you are advancing which is that there will be conflictan decisions among the states. Differt ates will disqualify different candidates. I am not getting a lot of lp from you about how this would not be any unmanageable cion. Mr. Murray this court wte affirming on the effects of what esent trump sai on january 6 and the weeks leading utot and his virtual concessions on twitter after the fact, it would be reversible for any state to conclude otherwise on that question of federal law or list this court can address that windows issues come up. It seems unlikely. Chief Justice Roberts Justice Sotomayor . Justice sotomayor there are two sis the other sides sition. The first is that is not selfexecuting some executing. It is not sfexecuting. Ey want to say Even Congress cannot do it because they need implementing legislation. Drs that argument. A rule that states dont have i , what would you have a say for e her side of the argument . One of my colleagues says Circuit Court justice said somehow i need implementing legislation like the 1870 act. You seem to say that is notrue because they could decide not to seek the candidate so i dont know if giation is necessary. Mr. Murray he are examples under congresss power to judge the qualifications of its members, neighbo of commerce refusing to seat candidatewh won an election. In theonxt of the presidency, it wou cate a number of difficultssues if the court ys there is no procedure for determining President Trumps eligibility unl after the election and enhat happens when members of congress are generally sixth say we are not going to cut electoral votes cast for presidt trump because he is disqlied under section 300 electoral count. A mb of briefs have made the point that that is a disenfranchisement and more the reason to address his issues now a judicial process. Everybody can have certainty on those issues before they go to the polls. Justice kagan ou relied on the states powers under the elector clause. You talked about the states having a role in acting enacting validrosions ballot provision he put some limits on that. I will give you anderson versus a busy as an example. States are limitedn o they can take off of a ballot. That was a case about min party candidates. The reason was one sts decision to take aalt off of a candida o of the ballot affects everyone elsesights. We talked about National Interest and the selection of candidates for natnaoffice. But talk about how any individual state decision would have an pa beyond its own borders. If thago for Minor Political Party candidates,hyoes it not go for the situation in this case . Mr. Murray constitutional principles like section the apply to everybody. The issue there was a first amendmt question. There is no doubt tha states exercise theirow under article two is constrained by First Amendment principles. Inhat case, the state law adlines for any minor party ndidate are on the ballot came o soon to be reactive to what major parties have done and therefore risk disenfranchising people with who the major partie have picked. Here there is no First Amendment problem. A state is trying to enforce an existing quafition baked into our constitutional fabric. Justice kagan there is a broader principle there about who has power overerin things in our federal system. States have great power over many different areas. There is se oader principle about at there are certain naon questions ates are not the repository of authority. I took a lot of andersons reoning. What is this data doing is a state doing the siding deciding who other citizens get to vote for for president . Mr. Murray colorado is not the siding who oth stes get to vote for president , is deciding its own electors under article two. Justice kagan the effect of that is obvious, yes . Murray no, different states can have different procedures. Some states can allow insurrectionists to be on the ballot. We are not loongnto constitutional questions. Even in th ection cycle, there are candides on the ballot in sometas even though they are not natural born citizens. That is a function of states power to preserve their own electors and avoid disenfranchisement of their citizens. Justice kagan thank you. Chief Justice Roberts Justice Gorsuch. Justice gorsuch i have not had a chance to talk about the officer point. Mr. Mitchell makes the argument th in the commissions clause, all officers are to commissioned by the president. It seems to be allencompassing, that language. I am curious your response to that. Along the w, i poked at the difference between office and officer in the other discussion. One point your friends on the ouidwould make onhe other side would make is that is how the nstution uses those terms. When youre the presintro tem of the senate and is bigger of the house are officers of the United States because th constitution says they are. You also know they dont hold any office in the United States because of the incompatibility clause that says they cant. Maybe the constitution to us to delay read mht look a little odd. Not prepositions, nouns, a distinction. Maybe that is how it works. Thoughts. Mr. Murray i would start th the idea that the meaning of officer in the 1780s is the same meaning today which is a person that holds any office. In certainonxts, it appears th ireferring to a narrower clasof officers. Juice gorsuch is says all. Mr. Murray we know there are classes of officers like the president pro tem we dont get commissions from the president. Justice gorsuch that is best because thais because the constitution says elsewhe. Mr. Murray getting the commission from the constitution itself rather than appointment. People who get commissions from the president are not commissioned by the president. If you read the clse the commissions clause is talkin about the president s power if one needs a commission, the president grants it. It is important tori us back to Section Three. Justice gorsuch a distinction between office and officer. You agree the constitutn es make that distinction, rticularly with respect to the speaker pro tem . Mr. Murray the constitution makes at disncon at least in section tee, any officer of the United States is a person who swears an oath and holdan office. The president pro m d speaker of the house dont swear it constitutional oath in that capaty case where an oath tha they are a senator or revisit if in congress. Justice gouc trere officers who do not hold any office . Mr. Murray there are officers who may hold any office but dont swear any oath. Justice gorsuc h can they hold any office under the incompatibility because incompatibility clause . Mr. Murray tt y be an exception to the general rule and some may consider them officers of the house and senate because they preside over those bodies. Justice gorsuch the constitution says they are officers of the United States. There are some instutions some instances where you have any officer but not any office. Mr. Murray those may be existent in some circumstances. Justice kavanaugh other questions about different states having different standards of proof seem underscored by this case, the dissenting opinion where justice ameaid i have been involved in the Justice System 33 years now. What took place here does not resemble anything i have seen in courtroom. And then added, what transpired in this litigation fell short of what do process demands. I dont know if i agree or not, but the fact at someone is complaining abouthbottom line conusn but the processes used in istate and that that would be permitted unrsres the concerns raised abouste power. I want you to have a chance to adess that because that is powerful language. Not about the conclusion but the fairness of the process. Mr. Murray that language with respect to jti more was no correct. President trump had fe day trial, he had any opportunity to call any witnesses. We had an opportunity to crossexamine witnse he had the opportunityo testify. The process waexdited because Ballot Access desis are always on a fast schedule. From the tal court up to this court, President Trump has never identified a single process other than expert definitions he want thave that he did not get. He had the opportunity for backwardness definitions, he had the opportunity to call witnesses remotely. There s ple process here. This is how Ballot Access determinations in election cases are decided l e time. Justice kavanaugh some of the rhetoric of your position seems to suggest unless the states can do this, no one can prent insurrectionists from holding federal office. Congress has enacted statutes, including one in effect, prohibits insurrection, a federal criminal statute. If you are convied you shall be disalied from holding any office. There is a federal statute on the books but President Trump is not charged with that. What are we to make of that . Mr. Murray secti 2was enacted s yrs before Section Three. Would emphasize that by the time Section Three was ratified, most confederates had received criminal pdo Justice Kavanaugh the question is different which is if the concern you have, which i understand is that insurrectionists should not be able to hold federalffe, the residual to ensure that does not happen, namely federal prosecution of insurreiosts. If convicted, congress made clear you are medically barred from holding a fedalffice. That truly exists and could be used against someone who considered jhucommitted insurrection. Seo who considered someone who committed surrection. Mr. Murray that is right. Section three made clear that criminal prosecution is not sufficient because oftentimes insurrectionists go unpunished as was the case in the civil war. Even if we dot have the stomach Justice Kavanaugh arovision was in effect from 1870 t1948, but that dropped out and has not been seen as necessary sin then. In trying to figure out what Section Three means to the extent of the language, what about the idea that wshould think about democracy, think out the right of the people to elect ndates of their choice , leinthe people decide . Your position has the effect of disenfranchising voters to a signifan degree. Does that come in and we think about should we read Section Three this way or read it that way . What about the background principal that decry . Mr. Murray wld like to make three points. Nstitutional safeguards are for the rpe of safeguarding our democracy, not just for the next election cycle but for generatis come. Section three is designed to protect our democracy in that way. The framers knew from painful experience that those who had broken their oath to the constitution could not be trusted to hold power because they could dismantle our democracy from within. They created a democratic safety vae. Trump can ask congress to give em amnes, t unless he does that, ouronitution protects us from insurrectionists. Thisase illustrates the danger of refusing to apply Section Three has writte the reason we are here is President Trump and tried to disenfranchise 80 milln americans who voted against him and the constitution does not require he be given another chance. Chief Justice Roberts Justice Barrett. Juicbarrett the road is at absent rare circumstanc, state courts and federal courts share authority. There are certain limits to that , limits to whh e constitution preempts the statesbility to resolve constitutional questions. You said earlier that once a president is elected, you accept a staging could not do anything ou that. Colorado cannot enact itswn provision and use it to get the secretary of state out of office. I assume that is because of this principle of structural prmpon . Mr. Murray yes, your hon. Justice barrett i want to clarify what that means. That means your aches are in the basket of the electorate clause. You are saying that en ough all of the questions have suggested the a problem with giving a single state the authority trender a decision that would have any effect on a national election, you are saying those structural concerns which might otherwise lead to the kind of results you would accept after someone is in office, ovco by the electric cross. Mr. Murray absolutely. States run president ial elections. What states have selected electors and they have voted, states have no more power over the candidate who has been nominated. Until then, the states have the power to adjudicate those issues. Justice barrett thank you. Chief Justice Roberts Justice Jackson. Justice jackson whei ked you about the uniformity concern and the dish uniformity of having different states enforce Section Threeitrespect to president ial elections, you seed to point to history in a certain way. You said i think the framers envisioned states and forcing Section Three states and forcing Section Three at least inome circumstances. In mvi of history, i am wondering whether president ial elections were such a circumstance that the framers actually envisioned states and forcing Section Three with respect to president ial elections oosed to senatorial elections, reprentives, more woeful concerns cayou speak to the argument that Section Three was about preventing the south from rising again in the contextf e local elections as opposed to focusing on the presidency . Mr. Murray two pnton that, first was iiscussed earlier, there is not the same history of states regulating Ballot Access. Ballot access rules to restrict president ial candidates would not have existed. They would not have been raised one way or another. Justice jackson im not making it a sti between Ballot Access and anything else. Mr. Murray understood. What is very clear from hisry is the framers were concerned about charismatic rebels who might rise through the ranks up to and including the united at president. Justice jackson why dont y put president in the enumerated stn Section Three . The thing that is troubling to me is i understand your argument, but they were listing people that were barred and esident is not there. I guess that makes me worried they were not focusing on the presen for example, the factha electors of the Vice President and president are there suggest ware worried about the charismatic personwere going to bar insurrectionists electors and therefore that person is no longer going to rise. Mr. Murray this mep in the debates in congress over stion three where johnson said why have you not include president and Vice President in the language . Senator moore response, we have. Any office under the United States. Justice jackson doest that suggest ambiguity . This ties into Justice Kavanaughsoint. We had a person at the time saying what i am saying, the language does not seem to include president. Why is that . If there is ambigui, y would we construe it to johnson came back it is clear that the constitution says about 20 times. Christ let me just say. Your point is that there is no ambiguity. Th this conversation where the legislators actually discussed what looked like ambiguity, you are saying there is no ambiguity. This is important. They do not hold an office. They vote. Im talking about the office part of this. First you have to specify elto. They wou n fall under any office. They do not hold office. E nstitution told us that under the clausend refers to them. You want to make sure that there is no doubt the area covered, given that this constitution suggests otherwi. Hehigh offices, the president , Vice President wes i appreciate that argunt if we think that the state cannot enforce this ovion for whatever reason, in this context,hahappens next in this case . Is it done . If this Court Concludes that colorado did not have the authority to exclude trump, i think this case would be done, but i think it could come back with a vision with a vengeance because they would have to make the determination about whether or not he is disqualified from office. President trump himself looks to resolve. There is no federal litigation, you would y . That is correct. Short of crinal prosecution. Thank you, counsel. Mr. Chief justice, may it please the court. Farreaching powers under the clause specifically directed colorados court to resolve any challenges to any candidate on the psintial primary ballot they contend that colorado must put him on the ballot because of the possibitof a super majority act of congress. Under thishey, colorado and every other state would have to indulge this possibility not just for the primary but through e general election. Nothing in theonitution strips them in this way. The case was handled capably and efficiently under press that we have used to did ballot challenges for more than a century. I welcome your questio is there an express provision that the that defines wt a qualified candidate is . There is not an express provision. They look at the need to be qualified. How doe get to this issue qlified candidates . If i could have a standing objection, you should not review im stooking at the statute. We have three important provisns that show that candat have to be qualified. It requires that the Political Party has to have a candidate. The candidates also have to be alified. We are actually talkingbo the participation of a Political Party, right . Not the participation of a candidate. The fight the fact is confirmatory that they had to be qualified and would not be otherwise. How is Section Three qualification . Just on its face. A candidate must meet every criteria for eligibility. Not being disqualified. There is a dfence between those two things. You represent the secre of state, right . If you are the secretary of state and someone comes in to say, i think this candidate should be disqualified, what do next . If they obtain objective information, the secretary can act on that. The secretary decides that . In some itaes. The challenge was brought before th paperwo had even been submitted. Because there had already been a challenge submitted, the secretary did not even make the determination. In another case where that was not the procedure that was filed, may ty had a stack of paper saying, i think this is why the person is guilty of insurrection. It is something that happened downhe street, but they say this is still an insurrection. Anything not even presented that level of controversy would sit in if another individual who brought the information brought it, the secretary could is there any pon in colorado and with wt u know about other states . A can use the 113 process to do so. There are other states that allow other versio o that. I think we are told that there are states that do not provide for review. Is that incorct ihi that is correct. Some do not have a mechanism to come t there are some states that do not have any mechanism to exclude a candidate from the ballot at all. I want to speak about would that be constitutional, the secretary of states determination was finally . I think that would be constitutional. They had a broad authority. Can atate that provides different rules of evidence and different standards of proof with this proceeding it is under the same power. Perhaps a different provision. There are other constitutional conts. What is the due process right . What is the liberty intert . I think there is a recognition and there is some due process interest in being able to process the ballot. I thought that was for voters. Did you think it would be ki something away from the candidate . Candidates can have an issue aboutei on the ballot. It is a qualifications clause l stacked together. These disns might be made different ways. It makes it in a very specific procs. Would our record very depending on the procedure deployed by the state . I think they have discretion. It might be based on the process employed by an individual state. Yocod exercise independent review or you could give deference to a full proceeding. Im cite. You think we should give deference in reviewing the factual record and conclusions . Website and amenable to suggestion for independent review as to what the courts position is. We could reach disparate results on the same record, right . I think that is possible. This disqualification is the same as any other disqualification. Residents or what have you. That is correct. What if i push back on that and say this disqualification to the point of the 14th amendment was to take away rtn powers. Number two, Section Three itself gives congress a very definite role that mr. Mitchell says is interfered with by the ability of states to take somebody off the baot it is just more complicated and more contested. Why dont all of those things make a difference . I think the trouble with categorizing it is an assumption that is coming up cae of this case. Back to the ie justices point, we could have an easy case with a insurctn who wrote on his paperwork, i gaged in insurrection. It would b an open and shut case as to whether or not that person would meet the qualifications to be on the llot. My posio are based on e states having the power to enforce sectionhr like we do other qualifications. I would defer to them on those points. Suppose a state that does recognize and makes the determination to opthat particular candidate ain insurrectionist. Could have a cascading effect so that a decision by a single judge whose factual findings are ve deference, yba trial judge would have aenmous effect on candidate to run for president across the country. Is that something that we should be concerned about . The concern is maybe not as high as itou be. There is a huge amount disparity in differenttas and every election. There is a candidate that they disqualified on th ballot. It was a feature of our proce with respect t decisionmaking, we give nationwide guidance. That reduces the potential amount of disparity between the states. With respecto e factual record, theyavprocesses for this. I think we need to lethat play out because that is what the electors clause assumes will happen. Congress can act at any time, if it inks it will runmok. We have been told that if what colorado dideris sustained, other states will retaliate. They will potentll exclude another candidate from the ballot. Whatbo that situation . I think we need to have states in our system where if they follow the processes appropriately, they will take realistic views wt insurrection is under the amendment. I do not think that this court should take those threads too seriously in its resolution in this case. You do not think that is a serious threat . Think we have institutions in place. The adnirators to enforce the rules, the courts that will review thatil review. Justice sotomayor . Justice kavanaugh . Justice jackson . Thank you. Rebutt. Mitchell . They rely heavily on the authority that it gives the legislature of eh ate to direct the manner of ectg. It must be consistent. There are others. A state cannot instruct its electo oy to vote forhi candidates. Nor cant violate the constitutional holding and they cannot use the electorate clause as an excuse to impose additional to go beyond the constitution. The problem with what it has done is that they have changed the criteria in sectionhree by maki ia requirement that must be met before the candidate who is seeking Office Actually holds the office, essentially moving forward in time. The has still been no and there on how distinguish the residey cas, ere the court of appeals and applying this Courts Holding have unanimousl disapproved state laws, requiring congressional candidates to show that they inhabit thste from which they seek election prior to election d. There is sllo possible way to distinguish those from the tuation below. Mr. Murray also invoked the nsuences that would follow that rejects the nationality and it agrees with Section Three as an officer of the u. S. Officers that are appointed made decisions that were invalid. This court did not useny variant to salvage the decisions that we made by the officers. Ther
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