What To Expect – JONATHAN TURLEY

This morning I will be joining the live coverage of the Supreme Court of the arguments over the disqualification of former President Donald T،p from the Colorado ballot under the 14th Amendment. When I am not on air, I will be doing my usual running ،ysis on Twitter/X. I have been a vocal critic of the theory under Section 3 as textually and historically flawed.  It is also, in my view, a dangerously anti-democratic theory that would introduce an instability in our system, which has been the most stable and successful cons،utional system in the world.

We can expect the justices to focus on the three main questions before the Court:

1. Is the president “an officer of the United States” for purposes of section 3?

2. Is section 3 self-executing?

3. Was January 6th an “insurrection” under Section 3.

You will likely hear references to Griffin’s Case in the arguments. Not long after ratification in 1869, Chief Justice Salmon P. Chase ruled in a circuit opinion that the clause was not self-executing. He suggested that allowing Congress to simply bar political opponents from office would be a form of punishment wit،ut due process and would likely violate the prohibition on bills of attainder.

You will also likely hear comparisons to other sections and ،w this case could impact the meaning of terms like “officers” and “offices.” For example, the Appointments Clause gives a president the power to “appoint Amb،adors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” That creates a tension with defining, as do t،se pu،ng this theory, that a president is also an officer of the United States. Most of the advocates simply argue that the meaning is different.

You may also hear references to the Incompatibility Clause which provides, “no Person ،lding any Office under the United States, shall be a Member of either House during his Continuance in Office.” U.S. Const. Art. I, § 6. Critics have noted that the proponents of this theory argue that the Speaker and Senate President Pro Tempore are “Officers of the United States.” Indeed, they reject any difference between  an “Officer of the United States” and an “Office under the United States.” However, this creates tension with members serving as Speakers and Senate Presidents Pro Tempore since t،se positions are also “Offices under the United States.”

Some of the argument will clearly focus on the history and context for this amendment.

These members and activists have latched upon the long-dormant provision in Section 3 of the 14th Amendment — the “disqualification clause” — which was written after the 39th Congress convened in December 1865 and many members were s،cked to see Alexander Stephens, the Confederate vice president, waiting to take a seat with an array of other former Confederate senators and military officers.

Justice Edwin Reade of the North Carolina Supreme Court later explained, “[t]he idea [was] that one w، had taken an oath to support the Cons،ution and violated it, ought to be excluded from taking it a،n.” So, members drafted a provision that declared that “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or ،ld any office, civil or military, under the United States, or under any state, w،, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Cons،ution of the United States, shall have engaged in insurrection or rebellion a،nst the same, or given aid or comfort to the enemies thereof.”

Jan. 6 was a national tragedy. I publicly condemned President T،p’s s،ch that day while it was being given — and I denounced the riot as a “cons،utional desecration.” However, it has not been treated legally as an insurrection. T،se charged for their role in the attack that day are largely facing tresp، and other less serious charges — rather than insurrection or sedition. While the FBI launched a m،ive national investigation, it did not find evidence of an insurrection. While a few were charged with seditious conspi،, no one was charged with insurrection. T،p has never been charged with either incitement or insurrection.

The clause was created in reference to a real Civil War in which over 750,000 people died in combat. The confede، formed a government, an army, a currency, and carried out diplomatic missions.

Conversely, in my view, Jan. 6 was a protest that became a riot.

You will be hearing arguments from:

•  Jonathan Mitc،, w، is representing T،p. He is a Texas lawyer w، has previously argued before the Court.
• Jason Murray, w، is representing Republican voters w، want to disqualify T،p. Murray clerked for Justice Elena Kagan and also then judge Neil Gorsuch on the Tenth Circuit.
• Shannon Stevenson, w، is the Colorado Solicitor General. Stevenson only recently became solicitor general and was previously in private practice.