On Tuesday, Colorado’s Supreme Court ruled Trump is ineligible under the 14th Amendment to appear on the state’s 2024 presidential primary ballot due to his role in the Jan. 6 attack on the Capitol.
The state judges said he took an oath to support the Constitution but “engaged in insurrection” to subvert it.
The state judges put their ruling on hold until Jan. 4 to allow for a speedy appeal to the Supreme Court.
On Wednesday, Trump’s attorneys are expected to urge the high court to rule that the former president is immune from criminal prosecution over actions that led up to the Jan. 6 attack.
Last week, Special Counsel Jack Smith asked the high court to rule quickly on Trump’s claim of immunity so his trial can begin as scheduled on March 4.
A grand jury in Washington indicted Trump on four charges that allege he conspired to “subvert the peaceful transfer of power to his lawfully elected successor,” Smith said. “The cornerstone of our constitutional order is that no person is above the law. …Nothing could be more vital to our democracy than that a president who abuses the electoral system to remain in office is held accountable for criminal conduct.”
The two legal challenges pose complicated, unprecedented questions for a conservative court that includes three Trump appointees.
No president or ex-president has been indicted for alleged crimes that occurred while in office. And no president has been held to have violated the Constitution for engaging in insurrection.
The 14th Amendment was adopted after the Civil War to extend equal rights and liberties to all Americans. It’s previously little-known Sec. 3 was added to prevent ex-Confederates from returning to office after having engaged in a rebellion against the United States.
It took on new significance after Trump refused to concede his election loss in November 2020 and instead encouraged his allies and supporters to keep fighting.
Still, some legal scholars expressed surprise that the 14th Amendment may now stand in the way of Trump’s drive for the White House in 2024.
Notre Dame law professor Derek Muller called the Colorado decision “a major and extraordinary holding from a state supreme court. Never in history has a presidential candidate been excluded from the ballot under Sec. 3 of the 14th Amendment.”
He said review by the Supreme Court “seems inevitable,” but granting the case “requires the court to step into the thorniest of political thickets.”
UCLA law professor Rick Hasen said the Colorado court handed down “a serious and careful opinion that reaches a reasonable conclusion that Trump is disqualified. Nonetheless the opinion reaches many novel legal issues that the U.S. Supreme Court could decide the other way should that court reach the merits.”
Some legal experts have said Sec. 3 cannot be enforced because Congress did not pass a law to enforce it. Others, including a Colorado trial judge, said the president is not an ordinary “officer” of the federal government, and was therefore, not covered by Sec. 3.
The state court majority dismissed that as far-fetched. They said the Reconstruction Congress which wrote the amendment surely did not mean to prevent ex-Confederates from holding minor offices while leaving the door open for Confederate president Jefferson Davis to become president of the United States.
Hasen said the high court needs to rule on the Sec. 3. issue and soon.
“It is imperative for the political stability of the U.S. to get a definitive judicial resolution of these questions as soon as possible. Voters need to know if the candidate they are supporting for president is eligible,” he said. “And if we don’t get a final judicial resolution before Jan. 6, 2025 a Democratic-majority Congress could decide Trump is disqualified even if he appears to win the electoral college vote. That would be tremendously destabilizing.”
The justices are also being pressed to rule soon on Trump’s claim of immunity from criminal charges.
Typically, a defendant’s legal claims are decided by a judge during a trial or in an appeal afterward. By contrast, claims of immunity usually must be resolved before the trial begins.
Looming over this case is the election year calendar and the extraordinary fact that the defendant is also the front runner for the Republican presidential nomination in 2024.
If the immunity claims cannot be resolved for several more months, Trump’s trial could be pushed back until the summer, when the election campaign moves into high gear.
U.S. District Judge Tanya Chutkan, who is the trial judge, dismissed Trump’s immunity claim on Dec. 1.
“Whatever immunities a sitting president may enjoy,…that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote. “Former presidents enjoy no special conditions on their federal criminal liability,” and they “do not possess absolute federal criminal immunity for any acts committed while in office.”
Trump’s lawyers want the court to hold the former president has a legal immunity from being prosecuted for “official actions” he took while in the White House.
They also argued that because the legal status of an ex-president is a momentous and unresolved constitutional question, the justices should not rush to decide it on a fast-track schedule at the behest of Special Counsel Jack Smith.
Trump appealed Judge Chutkan’s decision to the D.C. Circuit Court, which agreed to hear arguments in early January. But the special counsel urged the justices to skip over the appeals court, and the potentially months long delay the appeal would cause, and decide the immunity issue in a few weeks.
“It is of paramount public importance that respondent’s claims of immunity be resolved as expeditiously as possible— and, if respondent is not immune, that he receive a fair and speedy trial on these charges,” he wrote.
The Constitution does not say whether an ex-president can be prosecuted for his official actions during his term in office.
In 1982, the justices in a 5-4 decision ruled President Nixon could not sued by a Pentagon whistleblower he had fired.
That decision, in Nixon vs. Fitzgerald, established the principle that former presidents have an immunity for civil claims that arose from their official actions, and Trump’s lawyers contend the same rule should apply to criminal charges.
The two sides also disagree on the Constitution’s impeachment clause. It says a president may be impeached and “removed from office” if two-thirds of the senators convict him of “Treason, Bribery and other high Crimes and Misdemeanors.”
A second clause says impeachment is limited to “removal from office…but the party convicted shall nevertheless be liable and subject to Indictment, Trial, judgement and Punishment acccording to Law.”
The special counsel and Chutkan say this confirms the common view that impeached officials may be prosecuted for a crime after they leave office.
But Trump’s lawyers argue the opposite and say that because the former president was not “convicted” by two-thirds of the Senate for inciting the Jan. 6 attack on the Capitol, he is not subject to indictment and trial for much the same conduct.
Consideration of Smith’s petition does not guarantee that the court will take up the case. Such a move to skip the circuit court is rare, but the court has allowed it in situations that are of “such imperative public importance” as to need immediate consideration by the court.
If accepted, it would the first time the high court has weighed in on one of Trump’s indictments.
Any resolution of the immunity question could have a cascade effect on all four of the criminal cases Trump faces in the coming months. He has pleaded not guilty in the three federal felony cases and one state felony case. His lawyers have repeatedly indicated that they would cite presidential immunity as part of his defenses.
A separate legal battle over presidential immunity is underway in the civil cases Trump faces in relation to Jan. 6.
Separately, the Supreme Court has said it will consider a challenge to a law that makes it a crime to obstruct or impede an official proceeding, which has been used to charge hundreds of people in connection with the Jan. 6 insurrection. Trump also faces that charge in the D.C. election subversion case.