Category: Law

Supreme Court to Hear Immunity Argument

This morning the United States Supreme Court will hear argument in Trump v. United States (the caption says it all) in which the former President argues that he is immune from any criminal liability for the charges brought in that case. The argument (as all Supreme Court arguments) will be live-streamed on the Court’s website (https://www.supremecourt.gov) and will be available in both audio and transcript form later today. (After the argument I will edit the foregoing sentences to provide the links.)

It is clear of course that Donald Trump’s strategy all along has been delay, delay, delay, hoping that he can run out the clock to prevent any of the criminal trials to proceed before he hopes to be re-elected. Although it has not worked perfectly (the New York state trial is on-going as I write this), he has been largely successful, a disappointment to those who were hoping for some magic bullet to prevent either his re-election or the Hobson’s choice between him and President Biden.

Whatever one ultimately thinks about the merits of presidential immunity, it is an important question that the Supreme Court is going to have to answer and so here I part ways with those who argue that the mere fact that the Court has taken this case is proof of its partisanship. See, for example, Ankush Khadori’s Politico column, How to Know If the Supreme Court Is in the Tank for Trump.

Jay Bohn

April 25, 2024

Takes on Trump v. Anderson Oral Argument 4: The Significance of Collateral Estoppel

This is another post about a small part of the U.S. Supreme Court oral argument (transcript | audio) in Trump v. Anderson. 

During the argument Justice Alito asked both Jonathan Mitchell, President Trump’s attorney, and Shannon Stevenson, Solicitor General of Colorado who was appearing on behalf of the Secretary of State, about “non-mutual collateral estoppel.”

Collateral estoppel is a legal doctrine which essentially says that a litigant gets the metaphorical one bite at the apple on a particular issue. If in one suit an issue was decided against A and in favor of B, then A did not get to contest that issue if it was relevant to a different litigation against B. Earlier formulations of the doctrine required mutuality: it only applied it if the parties involved were the same (or “in privity”). C cannot come in and say that the issue was already resolved against A.

However, some jurisdictions now recognize “non-mutual collateral estoppel” which would permit C to do that very thing. Justice Alito was concerned that Colorado’s Supreme Court’s decision could be binding on the whole country:

JUSTICE ALITO:  The consequences of what the Colorado Supreme Court did, some people claim, would be quite severe.  Would it not permit –would it not lead to the possibility that other states would say, using their choice-of-law rules and their rules on –on collateral estoppel, that there’s non-mutual collateral estoppel against former President Trump and so the decision of the Colorado Supreme Court could effectively decide this question for many other states, perhaps all other states? Could it not lead to that consequence?

Mitchell, who might have been expected to stoke just such fears, said that it would not happen with respect to the Colorado decision:

MR. MITCHELL:  I don’t think so because Colorado law does not recognize non-mutual collateral estoppel.  And I believe the preclusive effect of the decision would be determined by Colorado law rather than the law of another state.

Justice Alito also raised the question during Stevenson’s argument:

JUSTICE ALITO: Suppose a state that does recognize non-mutual collateral estoppel makes a determination, using whatever procedures it decides to adopt, that a particular candidate is an insurrectionist.

Could that have a cascading effect, and so the decision by a court in one state –the decision by a single judge whose factual findings are given deference, maybe an elected trial judge, would have potentially an enormous effect on the candidates who run for president across the country? Is that something we should be concerned about?

Stevenson did not think it a matter of great concern because there is already “a huge amount of disparity in the candidates that end up on the ballot on –in different states in every [presidential] election.”1

I’m pretty sure that it is not an ideal solution to have the potential of either disparate decisions on the eligibility of an individual for office, especially the presidency, or allowing forum shopping to find a highly partisan judge whose decision would be subject to deferential review as to factual matters and could be binding on the whole country. There should be a national forum for all Section 3 questions.

Jay Bohn

February 29, 2024

  1. As I stated in the last post, there is not actually one national presidential election but 51 different contests for the choosing of electors. ↩︎

Takes on Trump v. Anderson Oral Argument 3: National or State Office Should Not Make a Difference

This is another post about a small part of the U.S. Supreme Court oral argument (transcript | audio) in Trump v. Anderson. Both Jonathan Mitchell, President Trump’s attorney, and Jason Murray, the attorney for the voters challenging Trump’s eligibility, were asked about the authority of the states to pass upon the qualification of candidates for federal office. Justice Sotomayor asked Mitchell:

Can states enforce the Insurrection Clause against their own office holders, or can they enforce it against federal officials, or can they enforce it against the president?  Those are all three different questions in my mind.

And Justice Thomas quickly jumped on Murray:

Do you have contemporaneous examples — and by contemporaneous, I mean shortly after the adoption of the Fourteenth Amendment — where the states disqualified national candidates, not its own candidates, but national candidates?

Although it may initially seem absurd to postulate that a State has any role in determining the qualification of a candidate for President or Congress, one must remember that the United States does not have national elections but 50 separate State elections (and one on the District of Columbia) for presidential electors. The States by and large choose how elections are run, what candidates need to do to qualify for the ballot and (to a somewhat limited extent) who is entitled to vote.

Disqualification under Section 3 is a question of federal law. If a State can decide that for a candidate for State or local office, it should be able to decide it at least for the election it is running.

Moreover, the standard for disqualification does not depend upon the office being sought (with the arguable exception of the presidency, see note 1 of this post). So, if Candidate A is an insurrectionist, Candidate A should not be eligible for any office, from dog catcher to President.

Jay Bohn

February 26, 2024

Takes on Trump v. Anderson Oral Argument 2: The Significance of Term Limits

This is another post about a small part of the U.S. Supreme Court oral argument (transcript | audio) in Trump v. Anderson. As part of Trump attorney Jonathan Mitchell’s presentation, he asserted that by banning Trump from the ballot the State of Colorado was effectively adding to the constitutional qualifications for the presidency, which a state cannot do.

In making this argument Mitchell was relying upon U.S. Term Limits, Inc., v. Thornton, 514 U.S. 779, 115 S. Ct. 1842; 131 L. Ed. 2d 881 (1995), which invalidated an Arkansas constitutional provision denying ballot access to three-term representatives and two-term senators.1  Mitchell says that U.S. Term Limits “only prohibits the states from adding additional qualifications or altering the Constitution’s qualifications for federal office. It does not purport to restrain Congress.”2

True, but the Court’s opinion in U.S. Term Limits relied heavily upon Powell v. McCormack, 395 U. S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), in which the Court decided that “the power granted to each House in Art. I, § 5, cl. 1, to judge the ‘Qualifications of its own Members’ [does not] include[] the power to impose qualifications other than those set forth in the text of the Constitution.” U.S. Term Limits, Inc., 514 U.S. at 788.

My reading of the Constitution’s provisions establishing qualifications for members of Congress and the President is that neither Congress nor the States can add to or subtract from the qualifications.3

If that is correct, then what do we make of 18 U.S. Code § 2383 (mentioned about ten times during the argument), which makes insurrection a federal crime, specifically the end of the penalty provision which directs that an insurrectionist “shall be incapable of holding any office under the United States”?

Jay Bohn

February 22, 2024

  1. U.S. Term Limits was a 5-4 decision. The only current justice who was on the Court at the time was Justice Thomas, who wrote a dissent. ↩︎
  2. Whether Congress has that power or not is irrelevant to Mitchell’s argument. ↩︎
  3. The sole exception to that rule is Congress’ explicit power under Section 3 of the Fourteenth Amendment to remove a disqualification under that section. ↩︎

Takes on Trump v. Anderson Oral Argument 1: Different Types of Disqualification (and Is There Any Role for the Twentieth Amendment?)

On February 8, 2024, the U.S. Supreme Court heard oral argument (transcript | audio) in Trump v. Anderson, an appeal from the ruling of the Colorado Supreme Court that section 3 of the Fourteenth Amendment renders Trump ineligible to be President (a federal question) and that under Colorado law he is therefore not permitted to be on the ballot for the Republican nomination (a state question).

My biggest takeaway is that Section 3 creates too many questions without clear answers and that it should be either repealed or revised to be clearer. That will not happen.

Most post-argument commentary thought the session went well for Trump.1 One interesting article2 commented “Trump’s lawyer, Jonathan Mitchell, delivered a buttoned-down presentation that omitted all the bombast and hyperbole the former president’s legal representatives typically muster when they argue on his behalf.”

The argument referenced a lot of potential issues, and I intend to pull out a few from time to time and discuss them.

Mitchell started by saying “The Colorado Supreme Court’s decision is wrong and should be reversed for numerous independent reasons,” but his argument focused on only two: that as President Trump was not an officer of the United States (which I discussed in some detail here) and an argument I had not previously seen, that Colorado cannot exclude a Section3-disqualified candidate from the ballot. In this post I am going to discuss the second point.

At the beginning of his argument Mitchell said:

The second reason is that Section 3 cannot be used to exclude a presidential candidate from the ballot even if that candidate is disqualified from serving as president under Section 3 because Congress can lift that disability after the candidate is elected but before he takes office. A state cannot exclude any candidate for federal office from the ballot on account of Section 3, and any state that does so is violating the holding of Term Limits3 by altering the Constitution’s qualifications for federal office.

Mitchell’s point was that Section 3, if applicable to Trump and the presidency, prohibits an insurrectionist from “being” President, not from running for the office.4 Because Congress can remove the Section 3 disability, a state cannot keep the insurrectionist from the ballot, a potential distinction from the case where someone who is not a natural born citizen — what Mitchell termed a “categorical” disqualification because it cannot be removed — seeks to run for President.

At this point it might be useful to review the Constitution’s qualifications for a person to be President (all actually written as ineligibilities or disqualifications (assuming for this purpose that there is no distinction between the two)):

  • Art. I §3, cl. 7: person impeached and convicted may be disqualified from holding “any Office of honor, Trust or Profit under the United States;”
  • Art. II §1, cl. 5: no person shall be “eligible to the office of President” unless a natural born citizen having attained the age of thirty-five years and been fourteen years a resident;
  • Amend. XIV §3 (assuming its application to the presidency): no disqualified person “shall hold any office, civil or military, under the United States . . . ;” and
  • Amend. XXII §1: “No person shall be elected5 to the office of the President more than twice . . . .”6

Only three of the six ineligibilities can be removed short of constitutional amendment: a person who is under thirty-five or has resided in the United States fewer than fourteen years can, through the passage of time, grow older and live in the United States longer and thus satisfy the age and residence requirements and Congress can remove the Fourteenth Amendment disqualification. The other three ineligibilities (disqualification after impeachment and conviction, not being a natural born citizen, and having been previously elected twice) are presumably what Mitchell meant be “categorical” disqualifications.

During the argument the deadline for removal of the disqualification (which Mitchell called a “waiver”) was not explicitly stated. He said it could not be before the election (which answers the specific question of whether Trump can be kept off the ballot), but it might be January 20, 2025, when Trump would take office. The Twentieth Amendment, however, suggests that it could be later, in fact, any time during a second Trump term. The second sentence of Amend. XX §3 provides: “If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified . . . .” (emphasis added) This suggests to me that a person who is not “categorically” ineligible could be elected President but would not be allowed to be President until (and unless) the disqualification is removed, either by the passage of time (for age or durational residence) or a Congressional amnesty. During that time the newly elected vice president would act as President.

Jay Bohn

February 19, 2024

  1. See, for example, Amy Howe, Supreme Court appears unlikely to kick Trump off Colorado ballot, SCOTUSblog (Feb. 8, 2024, 3:14 PM), https://www.scotusblog.com/2024/02/supreme-court-appears-unlikely-to-kick-trump-off-colorado-ballot/, also published on her own blog Howe on the Court, and Mark Walsh, A packed courtroom for the Trump ballot case, SCOTUSblog (Feb. 8, 2024, 5:41 PM), https://www.scotusblog.com/2024/02/a-packed-courtroom-for-the-trump-ballot-case/. ↩︎
  2. Josh Gerstein, A very un-Trumpy performance delivers for Trump at Supreme Court, Politico (Feb. 8, 2024, 3:14 PM), https://www.politico.com/news/2024/02/08/trump-lawyer-arguments-supreme-court-00140604/. ↩︎
  3. Courts in Minnesota and Michigan have held that under their states’ laws an ineligible candidate can be on at least the primary ballot. ↩︎
  4. There is of course the argument that the Twenty-Second Amendment does not prohibit someone from being president after being twice elected, such as by then being elected vice president (but see Amend. XII cl. 4: “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”), but I am going to gloss over that for now. ↩︎
  5. Because the Twenty-Second Amendment prohibits election, there is a very strong case that such a person may not appear on the ballot. ↩︎

This is the Day

At 10:00 this morning the U.S. Supreme Court will hear oral argument in Trump v. Anderson, an appeal from the ruling of the Colorado Supreme Court that section 3 of the Fourteenth Amendment renders Trump ineligible to be President (a federal question) and that under Colorado law he is therefore not permitted to be on the ballot for the Republican nomination (a state question). The oral argument will be available live on the Court’s website. Later today the recorded audio and a transcript will be available. I plan to post specific links in a postscript.

If this is all news to you, you probably haven’t been reading my blog. I’m not going to review everything here, but Amy Howe has written is a very good overview in her blog, Howe on the Court, which is also published on SCOTUSblog.

Jay Bohn

February 8, 2023.

Post script

The argument transcript and audio are now available.

J.B.B.

February 8, 2023.

More Fun with Section 3

A whole month has gone by since I wrote anything about the question of whether Section 3 of the Fourteenth Amendment makes former President Donald Trump ineligible to hold office again.1 (Indeed, it has been a month since I posted anything.) Since the last post on the subject the United States Supreme Court has granted Trump’s petition for certiorari to review the Colorado Supreme Court’s decision and will hear argument on February 8. Other than Trump’s reply brief, should he submit one, all briefing is complete. There were an astonishing number of amicus briefs.

Recently CNN.com published an article “Tracking the major 14th Amendment efforts to remove Trump from the 2024 ballot,” which is something I had been hoping someone would do.

Although U.S. Supreme Court arguments are not televised, a live audiofeed will be available on the court’s website and both the recorded version and a preliminary transcript are likely to be available later that day.

Jay Bohn

February 1, 2024

  1. I’ve written about this issue often; see footnote 1 in this post for an as-of-then up to date list. ↩︎

Year-End Wrap Up of Section 3 News

I’ve recently wondered what I would have written about if it weren’t for all the developments in the attempts to exclude President Trump from the ballot under section 3 of the Fourteenth Amendment. Here’s what happened (so far) since the Colorado Supreme Court affirmed the trial court ruling that Trump had engaged in insurrection but reversed the holding that the President is not an officer of the United States and thus declared Trump ineligible for reelection:

  1. Yesterday, the Michigan Supreme Court denied an application for leave to appeal the Court of Appeals ruling that as a matter of Michigan law the Secretary of State must place Trump on the primary ballot regardless of whether he would be disqualified from holding office.
  2. Also yesterday, the Colorado Republican Party filed a petition for writ of certiorari seeking U.S. Supreme Court review of the Colorado Supreme Court’s decision excluding Trump from the primary election ballot in that state.1

A significant part of the public reaction has been the view that the voters rather than the courts should be the ones to decide if Trump is President again.2 My problem with that is that either you apply the Constitution, or you don’t. You cannot pick and choose which provisions you agree with (like, for the media, freedom of press) and ignore others (the Second Amendment?). I’m not a fan of term limits precisely because they limit the ability of voters to choose their preferred candidates, but that doesn’t mean that I think that the Twenty-second Amendment should be ignored to allow two-term former Presidents Clinton, Bush, or Obama to run again.

Jay Bohn

December 28, 2023

  1. I thank CBSNews.com for the link to the petition. ↩︎
  2. See, for examples, the reaction of the other Republican candidates, as here reported by ABCNews.com and Star-Ledger’s “Friendly Fire” contributors on NJ.com. ↩︎

Colorado Court Rules That Trump “Engaged in Insurrection,” But That The President Is Not an “Officer of the United States,” So Trump Not Disqualified

On Friday Colorado district judge Sarah Wallace issued her decision in the only legal case seeking Trump’s removal from the ballot to come to trial (so far). It was certainly a win for President Trump, in that the court ruled that he is not disqualified, but only because the President is not an “officer” of the United States. Importantly, Judge Wallace found that Trump did “engage” in “insurrection.” It also appears that Judge Wallace agreed with what I have started to think of as my argument that the difference in wording of the presidential oath is significant. (See ¶313 and n. 19 at pp. 100-101.) CNN.com has a good article about the decision here.

While the organization behind the litigation has promised to file an appeal, I don’t see it going anywhere. They may be better taking the significant victory they got, a judicial declaration that the (sadly) likely Republican presidential candidate is an insurrectionist. (While I do not profess to know Colorado appellate procedure, I expect that you cannot appeal from a judgment in your favor, so unless the petitioners file an appeal, Trump may not be able to challenge that finding.)

I do want to comment on Trump’s argument that disqualifying him rather than letting the voters decide is anti-democratic. It certainly is, but no more so than the application of any other qualification for office, like being a natural born citizen at least 35 years of age. And it’s a little bit rich coming from someone who supported the racist-motivated “birther” challenges to the eligibility of Barack Obama.

Jay Bohn

November 20, 2023

Michigan Follows Minnesota In Rejecting Lawsuit to Keep Trump Off Primary Ballot

On Tuesday Judge James Robert Redford of the Michigan Court of Claims denied1 an attempt to exclude former President Donald Trump from Michigan’s Republican primary. As with the decision of the Minnesota Supreme Court about which I recently posted and which he cited (Minnesota’s order that is, not my post), Judge Redford ruled that being qualified for the office sought is not a requirement to be a candidate for a party’s nomination for the office.2

Judge Redford also rested his decision on another basis, that the plaintiff’s claim raises a nonjusticiable political question. Although the full explanation requires a lot more detail that I can provide at the present time,3 this is where I part company with Judge Redford.

Jay Bohn

November 16, 2023

  1. Thanks to Michigan Advance’s story on the decision for a link to the actual opinion. ↩︎
  2. Regardless of one’s feelings on whether that should be the law, absent a constitutional requirement otherwise, it is a position that the legislature of a state is free to take. ↩︎
  3. But see Courts Must (Ultimately) Decide Trump’s 14th Amendment Eligibility for a brief discussion of some thoughts about the question. ↩︎