[laughs] joseph, someone is prompting you. it's your turn. caller: my question is, say that he loses the ballot can he go back to colorado saying that he wasn't -- the state pulled both away from me? what happens about that. host: alright, what do you think should happen? caller: is he both, it should be countered. seemed like they are taking both away from people. they are always saying get out there and vote. now they are saying that if you write down anything, you are not going to get your vote counted. host: alright, justice in -- pennsylvania, joseph in pennsylvania, you will be our last this evening. the conversation will pick up tomorrow at 7:00 a.m. eastern time. thank you for joining us tonight. now we will take you back to earlier today when the supreme court heard this oral argument in trump v anderson in its entirety right here on c-span.

chief justice roberts: we will hear argument this morning in case 23-719, trumpersus anderson. mr. mitchell. mr. mitchell: mr. chief justice, and may it please the court: the colorado supreme court held that prident donald j. trump is constitutionally disqualified from serving as president under section of the fourtnt amendment. the colorado supreme court's decision iwrg and should be reversed for numerous indendt reasons. the first reason is that prident trump is not covered by section, cause the president is not "an officer of the it states" as that term is used throughout the constitution. "officer of the united states" refers only to appointed fials, and it does not encompass elected individuals, such as the president or members of congress. this is clear from the commissions clause, the impeachment clause, and the appointments clause, eh which uses "officer of the united states" to refer only to appointed and noelted officials.

the sendeason is that section iii cannot be used to exclude a presidential candidate omhe ballot even if that candidate is disqualified from serving as president under section iii because congress can lift that disability afterhe 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 oferlimits by altering the constitution's qualificatns for federal office. the colorado supreme court's decisions different from a state residency law th requires members of congress to inhabit the state prior to election day, when the constitution requires only that members of congress inhabit the state thatherepresent when elected. in both situations, a state is acceleratingheeadline to meet a constitutionally imposed

qualification and is thereby violating the ldg of term limits. and in this situation, aulg from this urthat affirms the decision below would not only violate term litbut take away the votes of potentially tens omiions of americans. i welcome the court's questions. justice thomas: mr. mitchell, would you -- you didn't spend much time on your argument with respect to whether or not section iiis self-executing, so would you address that? an-- and in doing that, your argument is that it is not self-executing, buth, in that case, what would the role of the state be, or is it entirely up to congress to implement the disqualification in section iii? mr. mitchell: it ienrely up to congress, justice thomas. and our argument goes bend actually saying that section iii is non-self-ecing.

we need to say something more than that because a non-self-executing treaty or a non-self-executing constitutional provion normally can still be enforced by a stef it chooses to enact legislation. the holding of griffin's case goes beyond even that by sayg that a state is not allowed to implement or enforce section iii of the fourteenth amendmt unless and until congress enacts implementing legislation allongt to do so. so, under griffin's case, which we believe icoectly decided -- the anderson litigants disagree with us on that point -- but, if ts urt were to adhere to the holding of griffin's case, the uld not be any role for the states in enforcing section iii unless congress were to enact a statute that gives them that authority. chief justice roberts: counsel what if somebody came into a state secretary of state's office and said, i toothoath specified in section iii, i participatedn insurrection, and i want to be on the ballot? does the secretary of state have

the authority in that situation to say no, you are disqualified? mr. mitchell: , e secretary of state could not do that, consistent with term limits, becae en if the candidate is an admitted insurrectionist, seioiii still allows the candidate to run for office and even win eleioto office and then see whether congress lifts that disabilitafr the election. this happenefruently in the wake of the fourteenth amendment where confederate insurrectionists were elected to ngress, and sometimes they obtained a waiver; sometimes they did not. and each house would determine for itself whether to seat that elected insurrectionist because 7 each house ithsole judge of the qualifications of its members. so, if a state banned even an admitted insurrectionist fm the ballot, it would be adding to and altering the constitution's qualifications r fice because, under section iii, the candidate need only qualify during the time the candidate holds the offi t which he's been elected. and under your honor's hypothetical, the crary of state would be demanding essentially that the candidate obtain a waiver from congress earlier than the candidate needs

to obtain that waiver. even though it is lily or would be difficult for an individual that says i am an inrrtionist and i had ten the oath, that would require two thirds of votes in congress. right? mr. mitchell: correct. chief justice roberts: that is an unlikely scenario. mr. mitchell: but no secretary of state is lod to predict a waiver because in doingo they are adding a qualificati t the ability to run for congress. the proper analogy is the state residency law because the constitution says a member of core must inhabit theta he represents when elected. the lower crthave all held a reliance on term limitshaan 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 of indiana and i have been all

my life and i want to run for office in illinois, the secretary of state cannot s you cannot? mr. mitchell: the question would be is the person going to inhabit the state when the election is held. if the candidate makes clear perhaps through a declarationr through a statement that he has no intti of relocating to that state borelection day, then the secretary of state would benfcing and it stand constuonalualification rather than enforcing a new state imposed qualification and that is the key under term limits. is this day and anyway altering e criteria for a federal office either for congress or the presidency? in this siatn the colorado supreme cot going slightly beyo wt section three requesecause section three on phase bands and insurrectionist from holding office. >> you admitted that the concept

of self-executing does generally permit statetorovide a cause of action for breaches of a constitutional provision. in fact, they do it frequently. here there is no debate that colorado has placed or provided that causef tion. you want to go a step further and sayha this, like the treaty clause, requires implementing legislation to permit the state to disqualify and insurrectionist. under section three. mr. mitchell: that is correct. justice sotoyo history proves a lot to me and my colleagues generly there are whe lot of examples of stes relying on section three to disqualify insurrectionis first stage offices. and you are bicly telling us that you want to go two steps

further or maybe three. yowant us to say that self ecion does not mean what it generally means. you want us now to say it means that congress must permit states or ruis states to stop insurrectiis from taking state office. and so this is a complete preemptionnd way that is very rare. it is rare under the 14th amendment. mr. mitchell: of course, it is rare and this is a one-off situation. justice sotomayor: i don't disagree but n wh respect with the waye find self-executing. mr. mitchell:e e not asking the court to redefine t concept of self execution. justice sotomayor: now the question is a very different one in my mind. i understand what you are relying on, griffin's. let's be cle. it was not a presidential

supreme court decision. it w a circuit court decision by ausce who when he becomes a justice writes in the davies case -- he assumed that jefferson davies would be ineligible to hold any office particar the presidency and treated, and this is h o words, second -- seiothree as executing itself meaning no leslation on the part of congress tgi it affect. u are relying on a noresidential case by a justice who takes back what he said. mr. mitchell: the key point f griffin's case and why it is an important precentit is not a president of this court but it provided theacrop against which congress legislated the enforcement act of 1870. justice sotomayor: it did away with that later. it has nothing to say with

respect for what section three means. can we get to the issue wch is i think one i gba to that i started withnd very briefly -- what sense does it say that states cannot enfoe section three against their own officis? i think logically thosere two separate issues in my mind. states and force the insurrection clause against their own officeholds can they enforce it against federal officials? or can they enforce it against the president? those are all three different estions in my mind. mr. mitchell:nd the answer to all the those questions depends on whether this court agrees with griffin's case. if griffin's case is the proper annunciation of the law than the state cannot do any of the things your honor suggests

unless congress gives it the authority to do so. ste sotomayor: a presidential decision that relies on policy does not lo at theanage, does not look at the history, does not analyze anything other than e disruption that such a suit would bring you want to credit as presidential. mr. mitchell: because congress relied on griffin's case when it enacted the enforcement act o 1870 and established -- justice sotomayor: if i may interrupt, it -this sounds like yr reply brief where you are not making a constitutional commit but a statutory --argument. is that whatoure doing here? you are not saying the constituonives you this rule. i a combination of griffin's case plus the way congressct after griffin's case that gives you the role? mrmitchell: that is exactly right, justice kagan. congress took up the invitation provided by griffin'case.

the on eorcement legislation that is currently on the books is the insurrectn iminal case and cgrs made all of these decisions, the initial entmt of the enforcement ac t repeal othe provision of 1948, they were all made with griffin's case as the backdrop. the understandinwa that these remedies would be excliv of state court remedies so there is not an express -- there did n need to be because griffin's ca provided the backdrop. justice kagan: suppose we told all tt ay, suppose there were no griffin's case and there were no subsequent congressional enactment, but do you then think the rule would be? mr. mitchell: it is a much harder argument for us to make because normay -- i mean every otherrosion of the 14th amendmt s been treated as self-executing. there are practical considerations unique to section

three that counsels in favor of a w similar to what chief justice chase spelled out and griffin's case and it goes to the policy concerns he talked about. griffin's case involved a convictedriminal who was -- habeas corpus on the grounds that the judge that tried his case was and insreionist is qualified under section three. the chief justice realid at if he enforced section three it would nullify every official act taken by thisarcular judge by anyone who wasn't insurrectionist or arguably and surrectionist under section three. >> why do you need these in -- inconsequential. why don't you have an argument of t constitution of its own urs? -- of its own force? mr. mitchell: there could be an argunt that is more limited you are suggesting a barrier unr the constitution t --

leslation for section three specific the federal offer and it could rely on presidents ch as mcconkie. justice barrett: why aren't you making that argumt? mr. mitchell:heolding of griffin's case went welleyond that. the chief justice chase provided the backdrop for the enforcement legislation that statehano role in enforcing section three unless congress was to give them that authority through a statue they fas justice barrett: your argument is a little broader thath because i think if we accept ur posio that disqualifying someone fm the ballot is adding a qualification, really your position is that congress cannotna a statute -- because congress would be adding a qualification which it cannot do either. mr. mitchell: i do not agree with that.

congress is not bound by the holding of ter limits. they only prohibit the state from adding additional publications or altering the constitution's requirements for federal - if congress were to enact implementing legislation that authiz the states to exclude insurrectionist from t ballot, bieve 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 and not runni f office. and so, if a state or congress were to go further and say that you cannot runorheffe, you cannot comten a primary, wind that be adding an additional qualification for serving as president? you must have been free from this disqualification at an earlier point in time as section three specifie mr. mitchell: the answer to your

question depends on how you interpret enfoe section five. some members of this court believed that enforce means yo can do nothing more than enact legislation that mirrors the --. at is not the current jurisprudencof this court. justice it we would get io the question of whether that would be congruent and proportional. let me shift gear, i take you to argue and i think you are right. the term self-executing is a misnomer as applied here. ry often when we use the term what we are referngo is the proposition that a particular provision of a conition or a statute creates a private right ofction. that is not the issue here. mr. mitchell: and sometimes the phrase self-executing is used at way but i would add that sometimes self-executing treaties -- the issue iwhher it has any force and domestic law. justice alito: i don't see what

is gained by using this term. what is involved here is t question of whether -- of whom can enforce section three with respect a presidential candidate. the consequeesf what the colorado supreme court did, some people claim, would be quite seve. would it not permit -- would it not lead to the possibility that her states would say, using their choice of la rules and their rules on collateral estoppel, thathe is non-mutual collateralstpel against former president donal trump. so the decision of the colorado supreme court could affectively decide this question for many other states, perhaps all other states. could it not lead to that consequence? mr. mitchell: i don't think so because colorado law doeno

recognize -- and i believe the precliv effect of that decision --. i think your question, justice it gives rise to a greater ncern. if the decision does not have effect on other lawsuits it uld have another possibility. different factual findingwod be entered by state trial court dg and they might conclude as matter of fact that president trump not have any intent to engage in incitement or make some other finding dierent. justice alito: exactly. in this decision, the trial court in colorado thought it wa proper to admit the january 6 reportndt also admitted the testimony of an expert who stified about the meaning of certain words and phrases to people who communiteith and among extremists.

another state court could reach an oppositeonusion. other states could concludehat the january 6 report was admissible hearsay and they might conclude that t statements within the january 6 report are hearsay. and they could certainly he different conclusion than the expert testimony of the professor. perhaps they could proceheir own witness. justice alito: should these nserations be dismissed as inconsequential or do they support a structural argument that supports the cion you are taking? mr. mitchell: i think they mutually enforce each other. we hav an argument we believe is sufficient to dispose this ca just based on meaning of officer of the stage. all of the considerations are additional reasons to reverse the colorado supreme court although we don't think it necessary to get into consequences because the law is on our side. >> you keep saying term limits

but there are other presidential qualifications in the constitution, age, citizenship and the 22nd amendment that does not permit anyone to runor second term. we have a history of states disqualifying -- not allut some of disqualifying candidates who wod t be of age if elected. we have a histo of at least one state disqualifying someone who s t a u.s. citizen. aryour arguments limited to section three? mr. mihe: not quite. the question is whether the state is vioti term limits by adding two or altering the extent qualifications for the president and the constitution. juste tomayor: so you want us to s -- i'm 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 disqualy him

from a ballot? mr. mihe: of course itan disqualify him from the ballot beuse that is a cash that is categorical. a stay is enforcing the constitution when it says you cannot appear on our bell if you have already served throh -- two terms. justice sotomayor: se they are not a.s. citizen. mr. mitchell: age is more nuanced because you cod imagine a scenario where the person is 34 euros old at the time of the election what he terms -- turn35efore d inauguration. justice sotomayor: that would come before us at some point. weould 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

thagexample. if a state like coloradoays you cannot appear on our presidential ballot unless you are 35 on the day of the eltion that would be a violation of term limits because there coulbe 34-year-old on the day of the election o turns 35 before inauguration da what coro where there supreme urhas done here i similar. under section three president trump needs to qualify during the time he would hold office and the colorado supremcot is send a president trump, you have to show that you would qualify under section thr now at the time of the election or at the time that we the supreme 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 y are talking about can change? i'm trying to understand the distinction between the

provision in the cstution that relates to the qualification on the basis of suection behavior and these other prisns that justice sotomayor points o. they all seem to me to be stand constitutional reirents. but you are drawing a distinction. mr. mitchell: because some are categorical. >> what do you mean by categorical? whether or not you are an insurrectionist -- mr. mitchell: because congress can lift theisility by a two thirds vote. >> why does that change the initial determination of wth or not you fall into the category? i don't understand the fact that you can be excused from vi been in the category -- why does that not make it cegorical determination? mr. mitchell: because we don't knowf esident trump would be sworn --ou be excused f

being sworn in. and a court sing that president trump has to show now toda that he could qualify under section three is accelerating the deadline the constitution provide for him to obtain a waiver from congress. >> that is by virtue of the hold. mr. mitchell: correct. >> now that i have the floor, can i ask u tadess your first argument which is the officer point? >> is that ok if we do this? will there be an opportunity to do offtuff? >> absolutely. >> i just want to understand, on this theory, why does the sum total of ways that section three can be enforced? that somebody out there can say, s, there has been a former

president who engaged or led or diiped in an insurrection d so should be disqualified from office putting aside the officer argument, what is the sum total of ways th enforcement can happen? mr. mitchell: the answer to that question will depend on what your honor this out griffin's case. if this court were to affi t rationale of griffin's case the the only w stion three could be enforced ishrgh congressional legislation. congress could reinstate the -- provision -- and how does that fit with a lot of the answers to the questions that we have bn given. you said congress has the ability by a two thirds vote to lift the disqualification. but too, i would think that provision would be in some teio with what you just said. if congress has the ability to lift the vote by a two thirds

majority then surely it cannot be right that one hous of congress can do the exact same thing by a sime majority. mr. mitchell: the ctainly is some tension and some commentators have pointed that out. justice kagan: then i must be rit. [laughter] mr. mitchell: we don't think the problem is fatal. though two thirds provision that allows congress 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, eachou that has the ability jge the qualifications of the members or in a decision from congress it would be whatever congress enacts. each federalrocutor had the authority to bringherit against an incumbent official and seek his oter from office under section three but it was still subject to the amnesty ovision in section three of the 14th amendment.

we acknowledge the tension but do not think it is an insurmountable obstacle. >> if you woulogize the lifting by congress of the disqualification by a two thirds vote to a pardonth surely we woulno argue that the fact that the president or governor can pardon someone from a criminal conviction or a criminal offense meaning the person could not be prosecuted in the first place for the criminal offense. mrmihell: that is right. >> i don't see the tension, there are two separate things. did the person engage inhe act? and even if the person did, are there reasons the disqualification should be lifted or the pardon should be granted? . mitchell: if the court accepts the griffin's case that would be theidng that we have. chief justice roberts: i don't know if there is a limithat one -- on something that seo can infer --

>> isn'at what you are doing? >> the intention would be that you would have the exact same actor and say the actoranift the disqualification by a two thirds vote. andou are saying only that actor can put the disqualification into effect in the first place and it can do that by far less than two thirds. it can do that by a simple majority of one house. >> or byoi nothing at all if the holding of griffin's case is correct. >> exactly. justice kan: the only thing it takes to have no action is half plus one saying we don't file -- feel like it. mr. mitchell: we were relying preemption documents as well. >> the griffin's case isls important to figure out the original pubc aning of section three of the 14th amendment.

th seems to me highly obative are -- of what the meaning or understanding of what attherwise elusive languages. mr. mitchell: we did not rely o heavily on the point you are making partly because we have this other opinion from justice chase in the jefferson davis case. th aument could potentially boomerang on us which is why we did not pusht rd on our briefing. justice kavanaugh: i want to let yofish that since== -- that sentence. mr. mitchell it might be relevant and it might undercut why grip -- wh the griffin's cacompletely emblematic of justice jackson: i had aout. question because you are making a contextual list argument. as i look at section three i see two parts of the fit ntence of section three.

the first is a stf offices that a disqualified person is barred from hding and second e ecific circumstances that give rise to disqualicion. first, am i right about seeg 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 presidential oath is not subject to disqualification? mr. mitchell: we are arguing both. justice jackson: i don't e that in your brief. mr. mitchell: there is a focus on the second and we had knowledge thate ve a heavier lift on the first. justice jackson: why? it seems you have a list on the president is not on it. mr. mitchell: it --very time

it appears it is used in a way that excludes -- juice jackson: the first argument is that we have a list of offices that a person is barred from holding under your theory ounr the language and weeet begins with senator, representative, electoofhe president and vice president, and all others civil or military offices. officeunr the united states. but the wdsresident and vice presidento not appear specifically on that list. i'm trying to understand are you gingp that argument and if so why? mr. mitchell: the president and vice president are not specifically listed but the anderson litigants -- >> and do you agree thathe framers would've put such a

high-end significant and important office or smuggled it in through that catchall phrase? mr. mitchell: we don't agree at all. 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 at point. your brief, i don't have the site and i apologize for that, but you do not affirmatively argue that point i thi is what your brief said. mr. mitchell: we certainly argued it in a reply bri. we did point out in our opening brief that there are potential issues athis court would rule under because that phrase appears in other parts of the conson including the impeachment disqualification clause -- >> i thought the point was that section three was unique. that there was setng pping with section three

that could explain why certain offices were left off or whatno mr. mitchell: perhaps but there are also implications in other parts of the cstution which really helps us with the "of the officer" of the united states. if this court were to say that the presidency is an excluded office under the united states that could apply at the president is not covered by the -- >> a lot hinges on the difference between come in your argument, between the words office and officer. and i guess i'm wondering what theory do you have from the origin uerstanding or from a textual list perspective why those two terms so closely related would carry such different weight? mr. mitche: because it is clear from the text that there are officers that dnohold offices under the united states for example the speakerf e house and the president pro

tempore who are described as officersn ticle 1 -- chosen byhe legislature. they also have to be officers if they are able to be covered by the presidential succession act. the officers conserve when there is a vacancy in the presidency d ce presidency. they are not officers under the united states. if you are aember of congress you nn simultaneously hold an office under the united states. that provision demonstrates that a member of congress cannot hold office -- justice gorsuch: i appreat that response. is there anything in the original drafting history discussion that illuminates why that distinction would carry su weight? mr. mitchell: not that we are aware so these are t inferences that we are drawing but we are not relying necessarily on the thought processes of tseeople that drt does because they are unknowable.

this language, especiay section three, was enacted as a compromise. there were radical republicans that wanted to go much rtr if you look at some of the earlr afts proposed. so people wanted to ban all insurrectionists from holding office and some wanted to go further and banned them even from voting. >> thank you, counsel. i have one technical question. the statute of 187 iit were still in effect, would require you mify your arguments slightly. itas repealed as you said in 1948. i tried to find it do you know why itasepealed? mr. mitchell: it looks ket was done as part of a reorganization of the united states code. i think a lot of things got aledn that. justice -- chief justice roberts: justice thomas, any further? >> is there any evidence of

other states using section three towbar -- to bar -- mr. mitche: not that i am aware. >> thank you. justice sotomayor: iould like to condone your principa argument on section three. even though the president may or may not qualify for the presidency may or may not qualify as an office of the united states, your principal argument is that the president is not an oicer of the united states, correct? mr. mihe: would say it more forcefully than what you described. we believe the presidency is excluded from office under t united states but the argument that he is excluded is the stronger of the two textually. justice sotomar: a bit of a gerrymandered rule designing it

to benefit your client. mr. mitcll i would n u the term gerrymandered as that would suggest nefarious justice sotomayor: only the petitioner is disqualified because virtually everyth president except washington has taken oh to support the constitution, correct? mr. mitchell: and john adams might alsoe excluded. president biden -- he took an oath as member of congress a it is true of every previous presen justice sotomayor: would that be true if we were to hold more narrowly in a reversal that it is not sti three that is at issue but as to whether section three could be enforced by states against the president? >> that would extend every presidential candidate. justice sotomayor: exactly. thank you. justice kagan: given you said

you don't have a lot of evidence that tounding generation is really thinking about office rsus officer of the united states, it would suggest tt should ask if that rule is a sensible one? if they had thought about it, what reason would they give for that re? it does seemhe is no particular reason and you could think of lots of reasons to the contrary does say that the only people who have engaged in insurrection who are not disqualified from office are presidents who have not held high office before --why would that rule exist? mr. tcll: i don't think eris a good rational given this is compromise legislation. if there is an agreed-upon s of words that can pass both houses of congress but different legislators may ha h holes and they did not get their way

-- this was the text settled upon. d would seem odd that president trump would fall through theracks in a sense. but there is no way that he can be covered under section three. justice kagan: is there any better reason if he goeso the office argument that justice jackson w sgesting, is there any better reasonhesaying that an insurrectionist could notold the whole panoply of offices in the united states that we are perfectly finwi that insurrectionist being president. mr. mitchell: i think that is the tougher argument for us to make from a policy matter. of all offeshat would be the one ofas you would likeo 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 spd to some of the specific

teuaarguments on the officer of with the importance of the clauses. i wanted to see where you landed today. mr. mitchell: there arehr textual inferences that can be drawn. t it does not say that the president shall commission all the officers of the united states. xiao is mandatory. he cannot commission himself. that is e the first problems. the anderson ligants, i think what ty're trying toay is the presidt nnot commission himself -- we also have members of congress who are not commissioned by the president and that is because they are not offirsf the united states. the lyensible distinction we can segin t lguage is that offices of the united ates -- officers of the united

states are appointed officials. in the impeachment clause enforces that. the president and the vice president are listed separaly from officers of the united states and the appointments clause, we know the president is not appointed nor is a vice president nor are members of congress they cannot be officers either. justice gorsuch:ndow does article one section six fit into the discussion? . mitchell: you have to be an officer to be in linof succession. we have a federal statute that puts the speaker and the president pro tem fair in line of succession. they are officers but not of the united states because they are notubct to impeachment. eris a is a gap between the term officer and the phrase officers of the united states

reinforcing the idea that officers of the united states are apart ds not just referred to fedel officeholders. justice kavanaugh: to make sure i unrsnd how you are using griffin's case. section three refers to insurrection and rse questions about who decides what processes are to be used that were ratified in 1868. thne year chief justice chase opines that states do not have the authority and that only congress has the authority to enforce that. at could be evidence as you say of the original public meaning? your point is tt it is reinfoedecause congress relies on that precedent in the enfoemt act of 1870 and forms the backdrop agait ich congress does legislate and as justice alito says, the historical practice for 155

years has bn at has the way it has gone where there have not been stated times trying to enrcdisqualification under section three against federal officers? whether that is a federal liquidation -- do you want to add to that or alter that? mr. tcll: that is exactly rit and the last part is ucl to our argument. congress relied on griffin's case and it provided the backdrop against which they legislated which is why we should read these mechanisms. its form of implied preemption. because congress made these decisions in explicit reliance on griffin's case. justice kavanaugh: and if we ree with you on griffin's case and what you are elaborated on there, that is the end of the case, right?

mr. mitchell: unless congress decides to enact a statute. juice kavanaugh: a new -- and under- you agree that someone could be prosecuted for insurrection by federal prosecutors and if convicted, could be or shall be disqualified then from office. mr. mitche: the only caveat would be our client is arguing tt he has presidential immunity so we should -- we would not concede. justice kavanaugh: understood. justice barrett: griffin's case was a collateral proceeding. could griffin have -- even if section three isot basis for collateral release in habeas which wasew at the time, could griffin have raised at his trial orndect appeal the argument that judge chaffee -- you cannot

legitimately s omy case because you are an insurrectionist and disqualified -- could he have wonhe mr. mitchell:ot if griffin's case is correct. the court would have to reject the rationale of griffin's case. justice barrett: i think the is some language that might be a little broad but at bottom griffin's case is about a collateral hearoeding. griffin had brought his case after the fact, he needed a contract shouldn't. why would it n work in a trial for him to challenge chaffee's constitutional ability to jucate the case? mr. mitchell:riin's case holds that only congress can provide t means of enforcing section three. he would have to await legislation from congress. juste rrett: let's assume i disagree with you about the

officer argument so sti three covers president trump. let's say that congress and arks provision that would allow a state to brin such an action against him to remove him from offi. wodn't that be in some tension with impeachment? he would be extracted from office outside of the presof impeachment. couldn' then president trump simp say, the only way to t me out of office is the impeachment process and n ts action? mr. mitchell: i don't know how that would play out becae e action that i am aware of under the 1874 enforcement act requires --. yo impeachment hypothetical would apply only in the present tonyfficer. i don't know how that played o

in courts and if anyone tried to argue that impeachment is the only remedy -- justice barrett: you said it is congress' exclusive pvie and you also said it has to imply only after someone i holding the office and i'm asng if your implication is that congress could n enact such -- as opposed to a state one. mr. mitchell: the impeachme clause says the president, the vice president and the law officers of the united states can't -- should be removed. congress can defund a position and effectively- the other relevant precedent is -- against laird where the jeffersonians appealed the midnight judges act . some people thghthat was unconstitutional the chief

justice upheld that. that to me as a relevant president showing impeacenis not the only way to get rid of a federal official. justice barrett: does president trump ha any type ofue process right here> --? this goes more to the question of what procedures heig have been entitled to. you don't make the argument that he had any kind of constitutionally protected right to ballot access and constitutionally entitled to a right to be heard? mrmihell: we made that argument below but not to this court. the proceedings quite charitably were highly irregular. the question seems to suggest that there mighte e process issues but we did not develop that for thicot for several

reasons. it does not do as much for our client justice jackson: going back to -- i guess i'm just surprised with h you are replying to justice kagan. i did not see any evidence that the presidency was top of mind for the framers when they were drafting section three because they were actulyealing with a different issue. the pressing concern, at least as i seeheistorical record, was actually what was going on at lower levels of the government. the possible infiltration of

embedding insurrectionto the state government apparatus anthe real ris that former confederes might return to power in the south via statl election either at local offices or as representatives of the state in congress. that is a ve dferent lens. you are concerned that these pele -- that seems to me very diffen than the worried that annsurrectionist would take control of the entire national government through the presiden. -- i'm surprised you would given the context that seems to demonstrate that their concern was not about the presidency. i don't know why you are getting that argument up. mr. mitchell: there is some exits -- some evidence to the justha justice kagan: -- justice

jackson: is there evidence? mr. mitchell: one of the drafts specificlyentioned the presidency and the vice presidency. justiceacon: but it was not the final action. mr. mitche:t was not the final acent but it shows there was some concern about some people about confederate structuralists ascending to the presidency. we did -- we looked at the historical edee and the other side can get back and row out evidence back in our face. we focus more on the text of the constitution because this was a compromise in section three. justice jackson: let me ask you anothe questiobeuse you have made any argumentbo the stat n being able to enforce section tee if we agree, what happens next? i thought you wanted us to end litigation so is there a possibility of continues in

federal cot? mr. mitchell: i am sure how it could unless congress ac a statute. justiceackson: we would have to say congressional enacting legislation necessary for ther state or federal enforcement. mr. mitchell: that is corre. justice jackson: the colorado supreme court concluded the violent tets of the petiers in this case to hold the cnt on january 6 qualifies as insurrection as defined by section three. i read your opening brief to accept tt those events accounted iurrection. your reply seems to suggest they are not. what is your position? mr. mitchell: we never considered this s insurrection. what we said is president trump did not engage in any act that could possibly be characterized insurrection. justice jackson: what is your

argument that it is not? ureply says- i think you say it did not involve any organized attempt to overthrow the government. mr. mitche: that is one of many reasons. there needs ban organized effort to overthro the united states through violence. justice jackson: a chaotic efrt is not an insurrection? . tchell: we did not concede it was an effort to overthrow the government. it was shameful but it did not qualify as insurrection as at term is used in section three. justice jackson: thank you. >> thank you, counsel. mr. murray. mr murray: mr. chief justice, we are here because the first time since they were 1812, our

nation's capital came under violent assault. the attack wasncited by a sitting president of the united states to disrupt the transfer of presidential power. engaging in insuecon against the constitution, president trump disqualifiehielf from public office. as we ar president trump's main argument is this court should create a special exception to section three that one apply to him and him alone. he said section three disqualifi a both baking -- both breaking insurctnists accepted former president who never before upheld -- held federal ator office. ere is no rationale for an exemption and the court should reject the claim that the framers made an extra ordinary mistake. section three uses dibately broad langue cover all positions of federal per

requiring an oath to the constitution. they claim difference between an office under and an office of the united states but this doe not come down to mere prepositions. just a -thtwo phrases are two sides of the same coin referring to any federal office anyone who holds one. president trump's other arguments for reversal ignore the role of the states in ruing presidential elections. under article two, states have the powe to ensure their citizens' votes are not wasted on a candidate who is constituonly barred from holding office. states are left to safeguard their ballot by excluding those who are under age, foreign-born, running for a third presidential term, or as here, those who have engaged in insurrection against the constitution. i welcome the court's questions.

justice thomas: do you have contemporanes examples? shortly after the adoption of the 14thmement where the statesisalified national candidates, not its own candidates? . murray: the only exampli can think of is the example of commerce andhrtie who was elected in georgia in 1868. e vernor of georgia declined to certify the results of that election because mr. cis was disqualified. it is nosurising that there areewxamples because we did not have baltsn the same way back then. candidates were righ in. there would not have been a procesfo determining before an election whether a candidate s quafi, like the processes we have now states created under article one and ticle two powers.

justice thomas: it would seem particularlyft reconstruction andft the compromise of 1877 and during the period of redeemers that you would have that kind of conflict. there were a plethora of confederates still around. there are any number of people who run foste offices or nationalffes. that would suggest there would be a few examples of national candidates being disqualified if you're reading is correct. . murray: there were national candidates disquifd by congress refusing to seek them. justice thomas: that is not this 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 authitto remove -- justice thomas: what was the purpose of section three? states were sending people -- e concernashat the former confederate statesou continue being bad actors. the effort waso prevent them from doing this. you are saying this also authorized states to disqualify candidates. when i am asking you for, if you are right, what are the examples ? mr. murray:he states excluded many candidates for individuals holding state offices. we have a numberf ses of states -- stice thomas: i underan the states controlling ste elections and stateosions, what we are talking about our nationalandidates. -- are national candidates you look at shbyoote or mcpherson, they talk about the

confctfter the civil war. there wereeople who felt very strolybout retaliating against the south, the radical republicans. they did not think about authorizing the south to disqualify national candidates. that is the gunt you are making and what i would like to know is, do you have any examples of this? mrmuay: many of those have filed briefs, the idea of the th amendment was with states and the federal government would insure rights and if fleto do so, the feder gernment would also step in. the reon there are not examples oestes doinghi is an idiosyncratic one, ections work differently. states have a background power under article two to run presidential elections. they did not u tt power to police ballot acce uil the

1890's. by the 1890's, everyone had received amnesty. >> looking at justice's thomases -- justice thomas's question, estate shall not -- immunity, will not process it without due process. on the other hand, it augmented federal we congress has the power to enforce . wouldn'th be the last place you would okor authoriti for the states, including nferate stas to enforce the presidential election process? that seems tbe position at war with the whole thrust ofhe 14th amendment and very ahistorical. mr. murray: we would locate the

state's authority not in the amendment would in article two and that is plenary. chief justice roberts: you have no reliance on section three, is that what you're saying? mr. murray: we have reliance on section three so far as articl two gives states this broad power to determine how their electors are elected and that power implies a narrower power or constitutional qualifications. chief justice roberts:inero power you're looking for is the power of disqualification. that is a very specic power in the 14th ameme and you are saying that is implicit the extended to the states under a clse that does not address that at all. mr. rr: we would say nothing at the 14thmendment takes away from the states their power to determine the maer of selecting their electors in e manner they see fit. that power i nearly plery -- nearly plenary a lessening entity constitution tells states they cannot do it.

the sucture of the 14th amendment was to expand federal power and restrict state power. states are bound to enforce section one of the 14th amendment. it is hard to see why states woulnobe similarly bound. >> states have the power to choose electors, graed just bau there is one authorizedea under the constiti to a particularnd does not mean there is any means to thaen i think you are taking that electors argument and bringing it into section three where the chief justice says says there is no historical evidence to support the theory of section three, nor to explain the erl structure of the 14th amendment. mr. murray: we certainlha a long history in this country of states using theirow to determine the manner of

selecting presidential electors to enfcetherualifications in the constitution. i don't think there is a debate on whether or not states are allowed to -- they could be excluded under the broad article. i don't see why section three should be treated any different. section 3 -- justice kavanaugh: when you look at section three, theur -- the term insurrection jumps out and the questions are, what does that mean? how do you define it? who decides whhesomeone engaged in it? what processes arepppriate for figuring outhe someone did engage in that? that is what they focused on as if to say these are difficult questions. you look at the amendment and

that tells you that congress has the primary role. ats different is the processes, the definition, who cides. 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 questis. the question bom does anything in the 14th amendment saonly congress can create that process? section five is not an exclusive provision. it is congress may have power. >> the questioyou have to confront is why a single state decides who gets to be prede of the united states. this question of whether a former president is disqualified fo insurrection, just say it, it sounds awfully nional. what means there are to enforce it would suggest they have to be federal, national means.

if you weren't from colorado and you were from wisconsin or from michiganwi 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, doesn't it? . rray: no, because it is ultimately this court that wil decide that question of cotitional eligibility and settle the issue for the nation. it is notnusual that questions of national importance come up -- justice kagan: this court would be saying some thing alo t lines that the state has power to do it. i was asking you to go further and say whshld that be the right rule? why should a single steave the ability to make this determination notnly for their noncitizens but for the rest of the nation? mr. murray: article two gives them the power to appoint their own electors as th s fit. if they are going to use a federal constitutional qualificioas a ballot accs

determinant, it is creating a federal constitutional qstion this court decides. if this court affirms the decision below determining esident trump is ineligible to be president, other states would have to determine what effect that has on their own state's lien procedure. justice barrett: if wsaid he was ineligible to be president, maybe yes. bb states with say we will keep him on the ballot anyway. it is going to have the fe of colorado deciding. i want to push back on it is national thing because this court will did. you say weavto review colorado's factu rord with clear error as a standard of review. we would be stuck with that record. i don't want to get into whether the record -- maybe the record is great. what if the record wasn't?

what if wn't a whole some record? the hearsayul. whatf this is just made by the secretary of much process at all? how do we review those factual findings why should -- apply and ds't that buckle back into this point that jti kagan was making, with mr. mitchell, tooth it doesn't se le a state called. mr. murray:hree points, your honor. the court reviews factual findings for clear eor president trump made the point in his reply brief that sometimes on constitutional questions at require unirm resolution, this court can do an independent review of the reco. 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 trump's statements he made in public view for all to se justice barrett: that is saying that in this context, if we

view the facts, you want us to watch the video of the ellipse and make a decision without any deference to or idce from lower court fact-finding? mr. murray: president trump hielf urges this court to decide the millage others -- the ri of his eligibility on the factual reco o page two. he has never at anpot to suggested there is something else that needed to be in the factual record, any other witness wanted to call. the essence of our case is his own statements. in his ownideotape statements -- >> i wanted to circle back to where justice kagan was. do you agree the states -- the sta's per here over its ballotas to come from some constitutional authority? mr. murray: members of this

court have disagreed about that. >> i am asking you. mr. murray: the majority of this court has said those powers come from articlewo we think the result is the same whether the court lated in article two or reserve power of the 10th amendment. justice gorsuch: you are not asking us to return toha -- it has to come from some federal constituon authority? mr. murray: no, we are not. juste rsuch: we're n talking about the qualifications clause. nobody is talking about whether he is 35 years old or tul born. not an issue. we are talking about something under the 14th amendment in section three. that is whe u have to defined your authority, right? mr. murray: we find our authority in article two in a state's power to run an election . ste gorsuch: this is a federal office and it has to come from the constuon and you are seeking to enforce section three?

mrmuay: we are suggesting in their broadow to select presidential electors they see fit, they can take account of section three. justice gorsuch: could theyo it without section three? could they disqualify somebody on any basis they want outside of the qualifications clause? mr. murray: that would run into term limit justice gorsuch: so it has to come back to secti tee. if that isru how does that work given that section three speaks about holding oic not who may run office -- run for office? it seems to me that you are asking to enforce an election contt. ovion of the constitution speaks of holding office. it is different than the qualifications because which is about who conducts the qualification clause which is about who can run and serve -- it's about the qualification because which is about who can

run and serve. mr. murray:he is nothing constuonal about a 30-year-old trying to get on the ballot. justice gorsuch: except they can get removed under sectn ree. thoughts on th? mr. murray: the fact athere is a provision for removing t disability does not negate the fact that the disability exists today and has existed since january 6, 2021 when president trump engaged innsrection. justice gorsuch: were his actions after that date before he left office on coherence? -- walterar's? is that where your argument les? mr. murray: that may be the one ple and a griffin's case where we agree which is when the justice that i talkedo my colleagues and we unanimouy agree you nn collaterally attack all actions of any officer who is in fact holding the position. justice gorsuch: let's circle back to where we started

section 3, 2 authority has to come fro there. it is about holding oicand a particular kind of disability that can be removed by congress. it is the only one like it that. they cannot remove age or tizenship. how does that form our thoughts about estate's efforts to regulate the ballot for a federal office? mr. murray: the fact that congress has an extraordinary remol power does not negate that the disability exists today and exists indefinitely into the future, much like the fact that the president can pardon somebody for criminal conviction does not make th cviction somehow contingent. i would note if president trump reppointed to any office toy as a state judge, he could not hold that office which shows e disability exists now. the fact that congrs s power to remove the disability does 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 two. >> there was a congressional action to commit competir officers or people who spoed the confederacy to hold office before the 14th amendment, correct? there must have been a thought that there was a pre-existing disqualification. mr. murray: that was right. there were a flood of amnesty requests before section three nt into place -- went into effect because people understood those people would be disqualified the moment section three was enacted unless they received amnesty. justicsomayor: what do you do with the consequences of your potion? if colorado's position is upheld, tre will be

qualification proceedings on the others a se of those will succeed. some will have different standards of proof. some will have different rules ouevidence. maybe the senate report would be accepted because it was ary. maybe it is beyond a reasonable doubt. 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 balt and others, your off othballot. will come down to a handful of states who decided the election. that is a daunting conquce. mr. murray: the fact that there are potential frivolous applications of a provision is not a reas - chief justice roberts: you might think differently, but t people who bring them don't ink they are frivolous. surrection is a broad term. if there is debate about it, i

suosthat will go into the decision and eventually if there was an insurrection when one president did something as opposed to when mee else did something else, what do we do? we wt til near the time of cutting the ballots -- counting the ballots for which states are valid and which aren't? mr. murray: there is a reas section three has been dormant, we have not seen ytng like january 6 since reconstruction. insurrection against the constitution is something a sht mary. chief justice roberts: it seems to me you are avoidinghe question which is other states might have different views about what constitutes insurrection. you are saying is all right because medy will decided they thought that was in suection but they were wrong. maybe they thought it was right and we have to develop rules for what constitutes an insurrection. mr. murray: just like this cour interprets other constitutional provisions, th crt can make clear that it is something extraordinary.

it requires an concerted group fo to resist through violence, not some ordinary application of state or federal law, but functions mandated by -- justice kavanaugh: on your point that it has been dormant 155 years, the otheridwith safety reason is chief justice's opinion in 19 which says congress has the authority here, not be states. that is followed up by the enforcement act of 1870 which congress acts on that understandin there is no history contrary in that period as justcie thos: pointed out -- justicehos pointed out. there is no example oftas exercising such authority. the reason it has been dormant is because thereaseen a settled understdi that chief justice chaseasssentially right and the branches of the government have acted under that understanding for 155 years and

congress can changth. congress does ha section 23, the insurrection act criminal statute. congress could change it but they have not in 155 years mr. murray: no, the reason it has been dormant is beus by 18 76, all former confederates had received amnesty. we have not seen anything like any insurrection since then. i would like to address your point -- chief justice roberts: justice alito. justice alito: i don't know how much we can inf fm the fact we have not seen anything like th and therefore conclude we are not going to see something in the future. from the time of the impeachment of president johnson until the impeachment of president clinton , more than 100 years later, there reo impeachments of presidents. and ir short order over the last decades we have had three. i don't know how much you can

for from that. mr. murray: this court can write any opinion that emphasesow extraordinary insurrectiois and how rare that is. it requires an assault not just on the application of law but on constitutionlyandated functions. we saw andre with sia coordinated attempt to disrupt a function mandated by the 12 amendment and essential to the transfer of powe >> let me ask you about if the por you describe disciplinary is really plenary. suppose the outcome of an eltion for president comes down to the otf a single state- the vote of a single state. ppe candidate a gets a majority of the votes in that state but the legislature does not like candidate a and thanks

candidate a is an insurrectionist so the legislature passes a law ordering to vote for the other candidate. do you spose the state has that power? mr. murray: there are principles th come into play in terms of after the people have voted that the state cannot change the rules. i am not sure because i'm not aware of this court addressing it. juice alito: let' change it so it is notft the election. the days before the election based on the fact that the polls in that atlook bad. can they do it? mr. murray: i think they could under this court's decision when this court emphasize for much of history state legislatures assigned electors themselves but that wouldrk ordinary than what we have herech is state ballot access principles to say we're only going to put on an individual qualified to assume the office. chief justice bes: can i ask you the question justice gorsuch asked?

lo at that going forward rather than judging on the baluchi guy on the validity of any act committed between a te when a president allegly engages in insurrection and leaves oic duringhaperiod, would you be lawful for military commande and officers to disobey orders of the president in question? mr. murray: i am not sure anything gives military officers the authority to audate the legality of the presidency. stice alito: is a he is disqualified from the moment it happens. i understand that the diff are -- the de ctdoctrine 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 disqualified, from that moment, why would anybody have to obey a direction

from him? mr. murray: ultimately there has bsome procedure inla to adjudicate theualification. congress can impeach a sitting president but that is the only remedy for negating the authority of a sitting pridt. justice alito: why? section threepeaks of disqualification from holding office. he say hes this qualified from holding office from the moment it hpe. mr. murray: correct justice gorsuch: you say there is no legislation necessary. i thought that with the o3 of your case. pcedure happens automatically. mrmuay: you need a procedure to he a remedy to enforce the disqualification justice gorsuch: that is a whole separate question. that is the de fac dtrine. that doesn't work here. he is disqualified from the montself-executing, done. i would think a person who would

receive a direction from the foer president in your view would be free to act as he or she wishes tht regard to that individual. mr. murray: i don't think so. justice gorsuch: wipe? -- why? mr. murray: effective -- the de facto provision would come into play. stice gorsuch: that is not work. put it aside. justice alito asked a different quti, i think it deserves an answer. on yourheory, would anything compel a lower official to obey an order from the former president? mr. murray: i am aging a situation where a former president was elected and they were 25 and ineligible -- justice gorsuch:o. we are talking about section three.

please don't change the hypothetic. i like doing it, too. he is disqualified from the moment hma any insurrection, whoever he is from whatever rty. 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 individu? mr. murray: we have rules requiring chain of command. a person is in the office, even if they don't have ahoty to call the office, the only way to get the office of the presidency is ieament. if you interpret section three in light of other provisions, while they hold office, impeachments the only way to validate they do not have the ability to hold that office and >> can isk you about something

justice kagan brought u unormity and the lack thereof if states are permitted to enforce section three in presidential 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 legislation. >> is not necessary. . murray: it is not necessary. in the lack of -- either the absence of federal -- a state adjudicates them. if the sta h not provided the process to comport with due process, one can make those challenges. assuming as here we have a full evidentiary record and any opportunity to prevent evidence. justice jackson: i understand we couldn't resolve it so we hava uniform ruling on it. my qstn is, why the framers would have digd aystem

that could result in interim this uniformy have elections pending and different states suddenly saying you are eligible and you are not on t basis of this kind of thing. mr. murray: what they were concerned about was assuring insurrectionists a rels don't hold office. one undersndthe imperative they had to ensure both breakers wod not take office. it would bodd to say states account can force it -- cannot enforce it, only the federal government can enforce it and core can rip a heart out of section three by a sime majority. it creates redundancy. the fact that states have the ility to enforce it se federal preemptionrovides an additional layer of safeguards. justice jackson: i will ask you about the histor i get a chance again. chief justice roberts: justice thomas. justice alito. justice alito: suppose there is

a countryha proclaims again d ain that the unitedtates is its biggest enemy. suppose the president of the united states for the mac reasons thinks it is in the best inre of the u.s. torode funds or release funds so they can besed by that country. could a state determined that person has genid and comfort to the enemy and therefore keep th person off of the ballot? mr. murray: this court hasever interpreted the eight and mft language which is in the treason clause. it has been really applied because treason prosecutions are ra. commentators have suggested that aid and cfort only applies in a decledar or any adversarial relationship where you there -- where there is in fact a war between two countries.

the standard would do a lot of work there because under section three, whatever the uering conduct is, it has to be done with the intent to further the purpose of the insurrection or aid the enemies. justice alo: let mco back to the question of what we would do if differenttas had adjudicated the question of whether former president trump is an insurrectionist using a different record, dfent rulings on the admissibility of evidence, perhaps different standards of proof. what would we do? . murray: if there were deficiencies in the record, the court could refuse to hear the case or decide based on deficiencies of the record. justice alito: we haveo cide what is the appropriate rule of evidence that should be applied in this cas woulde have to decide what is

the apprrie standard of proof? would be given any difference to these findings -- would we give any difference to these findings? would weavto have our own trial? mr. murray: no. this court takes the evidentry cord as it is given and here we have an evidentiary record agree that the parties agree it is suffienin this case. there is a possibility of an independent review of the fact. ultimately what we have is any insurreconncited -- justice alito: youreot answer my question. it is not helpful. suppose we have two differt records, two different bodies of evidence, two different rulings qstions of the disability, o fferent standards of proof, two different sets fact-finng by two different judg o maybe multiple judges in multiple states, what do we do? . murray: this court would set the legal standard and then

decide which of you the record was correct. justice alo: which view of what record? mr. murray: if this court had two cas a both of the records reufficient insofar asoth have the opportunity to present -- their case, then this court would have to look at the evidence presented and decide which holding was cre and decide that sufor the country. wh there is a complete record, the records will be applying the decision. i think it is unlikely any court would say we will reach a different decision than the supreme court did, particularly if the courtels on the fact of what president trump said on video and in his twitter feed which is t eence of our case. justice alito: you had an expert testified about the meaning of what president trump said. do you think it is possible in a different ste court -- a

different state cot uld appl to alberta differently and say this person should not be allowed to express an expert opinion on that question? do you think that is beyond the realm of imanaon? mr. murray:. noat all. numbernepresident trump did not appeal the admission of that evidence. mb two, the point is producing me did not opine on the meaning of trouble's words, on the effect of those wds had on extremists. the essen was around videotaped statements of trump himself encouraging and praising political violence. justice alito: i am not taking a position one way or another about whether the expt's testimony should have been admitted or anything like that or the meaning of president trump's wor, i am trying to get you to grapple with what some people had seen as the nsuences of the argument you are advancing which is that

there will be conflicts and decisions among the states. different statesildisqualify different candidates. i am not getting a lot of help from you about how this would not be any unmanageable decision. mr. murray: this court writes affirming on the effects of what president um said on january 6 and the weeks leading up to it and his virtual concessions on twitter after the fact, it would be reversible for any state to colu otherwise othat 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 sides to theth side's positi. the first is that is not self-executing -- some executing. -- it is not self-exutg. they want to say even congress

cannot do it because they need imementing legislation. address th argument. a rule that states don't have it , what would you have a say for the other def the argument? one of my colleagues ss -- circuit court justice said somew need implementing legislation like the 1870 act. you seem to say that is not true because they could decide not to seek the candidate so i don't know if legislatiois necessary. mr. murray: there are examples under congress's power to judge

the qualifications of its members, neighbors of commerce refusing to seat candidates who won an election. in the context oth presidency, it would create a number of difficult issue if the court says there is no procedure for determining presentrump's eligibility until afr e ection and then what pps when members of congress are generally sixth say we are not going to cut electoral votes cast for president trump because he is disqualified uerection 300 electoral count. a number of briefsavmade the point that that is a disenfranchisementnd more the reason to address his issues now in a jicl process. everybody can have certainty on those issues before they go to the polls. justice kagan: you rieon the state's perunder the elector

clause. you talked about the states having a role in acting -- enacting valid provision -- ballot provisions. we have puso limits on that. i wi ge you anderson versus a busy as an example. states are limited in who they can take off of a ballot. that was a case about minor rty candidates. the reason was one state' decision to take a ballot of of -- a candidate off of e llot affects everyone else's right we talked aboutatnal interest and the selection of candidates for national office. but talk about how any individual state decision would have an impact beyd s own borders. if that goes for minor political party candidates, why does not go for the situation in this case? mr. murray: constitutional principles like section three apply to everybody.

the issue there was a first amendmentuestion. there is no doubt that states exercise their power under article two is constrained by fit amendment principles. in that case, the state law deadlis for any minor party candide e on the ballot came too soo to be reactive to what major parties he done and therefore risk disenfranchising people with who the major parties have picked. here there is no first amendment problem. a state is trying to enforce an existing qualificationak into our constitutional fabric. justice kagan: there is a oar principle there about who has power over certain thgs in our federal system. ates have great power over many different areas. there is some broade principle about that there are certain national questions.

statesreot the repository of authority. i took a lot of anderson's reasonin what is this data doing -- is a state doing the siding -- deciding who other citizens get to vote for for prede? mr. murray: colorado is not the siding who other states t to vote for president, is deciding its own electors under article two. juice kagan: the effect of that is obvious, yes? mr. muayno, different states can have different procedures. so states can allow insurrectionists to be on the ll. we are not looking into constitutional questions. even in this electio cycle, there are candidates on the ballot in some states ev though they are not natural born citizens. thats a function of states por preserve their own electorsnd avoid disenfranchisement of their citizens.

justice kagan: thank you. chief justice roberts: justice gouc justice gorsuch: i have not had a chance to talk about the offir int. mr. mitchell makes the argument that in e mmissionslae, all officers are to be mmissioned by the president. it seems to be all-encompassing, that language. i am curious your response to that. along the way, i pok athe difference between office and officer in the other dcussion. one point your friends on the outside woul make -- on the other side would make is that is how the constituti us those terms. when you're the president pro tem t senate and is bigger of the house areffers of the united states because the nstitution says they are. you also know they don't hold any office in the united states because of the incompatibility

clause that says they cannot. maybe the constitution to u to delay reader might lk little od not prepositions, nouns, a diinion. maybe that is how it works. thoughts. mr. murray: i would start with the idea that the meaning of officer in the 1780's is the same meaning today which is a peon that holds any office. in certain contexts,t appears that is refein to a narrower class of officers. justice rsh: is says all. mr. murray: we know there are classes of officers like the president pro tem we don't get commissions from the president. justice gorsuch: that is best because -- that is because the constitution says elsewhere. mr. murray: -- getting the commission from the constitution itself rather than appointment. peleho get commissions fro

the president are not commsied by the president. if you read the clause, the commissions clause is talking out the president's power if one needs a commission, the president grants it. it is important to bring us ck to section three. justice gorsuch: a dtition between office and officer. you agree the constitution does make that distinction, particar with respect to the speaker pro tem? mr. murray: the constitution makes that distinction alet in section three, y ficer of the united states is a person who swears an oath and holds any office. the president pro tem and speaker of the houseon't swear it constitutional oath in that capacity. case where an oath that they are a senator or revisit if in congress. justice gorsuch: there are officers who do not hold any office? mr. murray: there are officers who may hold any office but don't swear any oath.

justice gorsuch: how canhe hold any office under the incompatibility because -- incompatibility clause? mr. murray: that may ben exception to the general rule and some may consider them officers of the house and senate because they preside over those di. justice gorsuch: the constitution says they are officers of the united states. there are some institutis -- 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 diffenttandards of proof seem underscored by this case, the dissenting opinion where justice amore said i have beennvved in the justice system 33 years now. what took place here does not

sele anything i have seen in courtroom. and then added, "what transpired ts litigation fell short of what do process dan." i don't know if i agree or not, but the fact that someone is complaining about the bott line conclusion buth processes used in this statend that that would be permitted underscores e concerns raised about state por. i want you to have a chance to address atecause that is powerful language. not outhe conclusion but the irss of the process. . murray: that language with respect to justice more was not rrect. president trump had a five da trial, he had any opportunity to call any witnesses. we had an opportunity to cross-examine witnesses. he had the opportunity to testify. the process was expedite because ballot access decisions

are always on a fast schedule. from the trial court up to this court, president trump has never identified a single process other than expert dinions he wanted to havehahe did not get. head the opportunity for backwardness definitions, he had e portunity to call witnesses remotely. there was ample ocs here. this is how ballot access determinations in election cases are decided all the te. justice kavanaugh:ome of the rhetoric of your position seems to suggest unless the states can do this, no one can prevent insurrectionists from holding federal office. congress has enacted statutes, including one in effect prohibits insurrection, a federal criminal statute. if you are convicted, you shall be disqualified omolding any office.

there is a federaltatute on the books but president trump is not charged with that. what are we to make of that? mr. murray: section 23 was enacted six years borsection three. i woul emphasize tt the time section three was ratified, most confederates had received criminal pardon. justice kavanaugh: the question is different which is if the concern you have, which i understand is that inrrtionists should not be able to hold federal office, t sidual to ensure that does not happen, namely federal prosecution of insurrectionists. if convicted, congress made clear you are medically barred from holding a federal offic that truly exists and could be used against someone who considered joshua commte insurrection. -- someone who considered -- someone who committed insurrti. mr. murray: that is right.

section three made clear that criminal prosecution is not sufficientecse oftentimes insurrectionists go unpunished as was the case in the civil war. even if we don't ha t stomach -- justice kavanaugh: a provion was in effect from 1870 to 1948 but that dropped out and has not been seen as necessary since en. in trying to figure o what section three means to the extent of the language, what about the idea that we shou think about democracy, think about e ght of the ppl to elect candidatesf eirhoe , letting the op decide? your position has the effect of disenfranchising voters to a significant degree. does that come in and wthk about should we read section three this way or read it that

way? what about the background principal that democracy? mr. murray: i would le make three points. constitial safeguards are for the purpose ofafuarding our doccy, not just for the next election cycle but for generations toome. section three is designed to protect our democracy in that wa 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 decracy from within. they created a democratic safety valve. trump can ask congress to give them amnesty, but unless he does that, our constitutn otects us from insurrectionists. this case lurates the danger of refusing to apply section three has written. e reason we are heres president trump and tried to disenfranchise 80 million americans who voted against him and the constitution does not

require he be given another chance. chief justice roberts: justice barrett. justice barrt: the road is that absent rare circumstances, stateous and federal courts share authority. there are certain limits to that , limits to which the constitution preempts the state's abili tresolve constitutional questions. u id earlier that once a president is elected, you accept a staging could not do anything about tha colorado cannot enact its own provision and use it to get the seety of state out of office. i assume that is because of this principle of structural preemption? mr. murray: yes, your honor. justice barrett: i want to clarify what that means. that means your aches are in e basket of the electorate clause. u are saying that even though all of the questions have

suggested there is a pbl with giving a single state the authority to rend aecision that would have any effect on a naonal election, you are saying tsetructural concerns which might otherwise lead to the kind of results you would accept after someone is in office, overcome by e ectric cross. mr. murray: absolutely. states run presidential elections. attates have selected electors and they have voted, stat he 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: when i asked you about the uniformity concern and the dish uniformity of having different states enforce section three with respt presidential elections, you seemed to point to history in a certain way.

you said i think the framers envisioned stas d forcing section three -- states and forcing section three at least in someirmstances. in my view of sty, i am wondering wheerresidential elections were such a circumstance that the framers actually envisioned states and forcing section three with respect to presidential elections as opposedo senatorial elections, representative, more woeful concerns. can you eato the argument that secon three was about preventing the south from rising again in the context of the local elections as opposed to focusing on the presidency? . rray: two points on that, first was as i discued earlier, there is not the same history of states ruling ballot access.

ballot access rules to restrict presidential candidates would not have existed. they would not have been raised one way or another. justice jackson: i'm not making it a station betenallot access and anything else. mr. murray: understood. wh i very clear from history is the framers were ccerned about charismatic rebels who might rise through the ranks up to and including the united states prede. justice jackson: why don't you put president in the enumerated list in seiothree? the thing that is troubling to me is i understand your argument, but they were listing people that were barred and presidt not there. i guess that makes me worried they were not focusing on the president. for example, the fact that electors of the vice president anpresident are there suggest if we are worried about the charismatic person, we are gng to bar insurrectionists electors

and therefore that person is no longer going to rise. mr. murray: this came up inhe debates in congress over section three where johnson sd y have you not include president anvi president in the language? senator moore response, we have. any office under the united states. justice jackson: doesn't th suggest ambiguity? this ties into justice vanaugh's point we had a persont e time saying what i am saying, the ngge does not seem to include president. y is that? if there is ambiguity, why wod we construe it to >> johnson came back -- it is clear that the constitutionay about 20 times. ri let me just say. your point is that there is no ambiguity.

with ts conversation wrehe 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. >> i'm talking aut the office pa othis. >> first you have to specify electors. they would not fall under any office. they do not hold office. the constiti told us that under the clause and rerto them. you want to make sure thathere is no doubt the area covered, gin at this constitution suggests otherwise.

other highffes, the president, vice president -- wes i appreciate that argument. if we think that the state cannot enforce this provision for whatever reason, in this context, what happs 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 vengncbecause they would have to make the dermination about whetherr not he is disqualified from office. president trump himself looks to resolve. >> there is no federal litigation, you would say?

>> that is correct. short of criminal ution. >> thank you, counsel. >> mr.hi justice, may it please the court. r-aching powers under the clause specifically directed colorado's court to resolve any challenges to any candidate on the presidentiaprary ballot. eyontend that colorado must put him on the ballot because of the possibility of aup majority act of congress. under this theory, coro and every other state would have to indulge this possibility not just for the primary but through

the gera election. nothing in the constitutn strips tm in this way. the case was handled capably and efficiently under a process at we have used to decide ballot challenges for more than a century. i welcome your questions. >> is there an express provision that the -- that defines what a qualified candidate is? tre is notn express provision. they look at the need to be qualified. >> how do we geto this issue of qualifi cdidates? >> if i could have a standing objection, you should not review

-- >> i'm just looki athe statute. >> we have three important provisions that show that candidates havtoe qualified. it requires that the political rthas to he a candidate. the candidates also have to be qualifd. >> we are actually talking about the participation of a political party, right? not the participation of a caide. >> the fight -- theacis confirmatory that they had to be qualified and would not be otherwise. >> how is section three qualification? just on its face. >> aandate must meet every itia for eligibility.

not being disqualified. there is a difference twn those two things. >> you represent the secretary of state, right? 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 foation, the secretary can act on that. >> the secretary decides that? >> in some instances. the challenge was brought before the paperwork 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, maybe they ha a stack of paper saying, i think this is why the person is guilty of insurrection.

it is something that happened down the see but they say this is still an insurrection. >> anything not even presented that level of controversy would sit in -- if anoer individual who brought the information brought it, the secretary could bring that action. >> is there any provision in colorado and with what you kn about other states? >> aanse the 113 process to s there are other states that allow other versions of that.

>> i think we are told that there are states that do not pride foreview. is that incorrect? >> i think tha is correct. some do not have a mechanism to come to. there are some stas that do not have any mechanism to exude a candidate from the ballot at all. i want to speak about -- would that be constitutional, if the secretary of state's determination was finally? >> i think that would be constitutional. they had a broad authority. >> can a statehaprovides different rules of evidence a different standards of proof with this proceeding >> it is

under the same power. >> perhaps a different provision. >> there are other constitutional constraints. >> what is the due process right? what is the liberty interest? >> 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 taking something away from the candidate? >> candidates can have an issue about being on e ballot. it is a qualifications clause all stke together.

>> these decisions mhte made different ways. it makes it in a very specific process. would our record very depending on the procedure deployed by the state? >> i think they he discretion. it might be based on the process employed by an individual state. you could exci independent review or u uld give deference to a full proceeding. >> i'm ci 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 court's position is. >> wcod 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. >> whaif push back on that and say this disqualification to the point of the 14th amendment was to take away certain powers. number two, section three itself gives congress a very definite role that mr. mitchell says is interfered with by the ali of states to take somebody off the ballot. it is just more complicated and more contested.

why don't all of those things make a difference? >> i think the trouble with categorizing it is an assumption that is coming up because of this case. back to the chief justice's point, we could have an easy caseit a insurrection wh wrote on his paperwork, i engage in insurrection. it would be an open and shut case as to whether or not that person would meet the qualifications to be on the ballot my positions are based on the states having the power to enforce section three likweo other qualifications. i would defer t on ose points. >> suppose a state that does recognize and makes the

determination to adopt that particular candidate as in insurrectionist. could have a casdi effect so that a decision by a single judge whose factual findings are given deference, maybe a trl judge would have an enormous effect on candidate to run for president across the country. ishasomething that we should be cceed about? >> the concern is maybe not as high as it could be. there is a huge amount of disparity in different states and every election. eris a candidate thathey disqualified on the ballot. it was a feature of our process

with respect to disn-making, we giveatnwide guidance. at reduces the potential amount of disparity between the states. with respect to the factual record, they have procsefor this. i think we need to let that ay out because that is what the electors clause assumes will happen. congress can act at any time, if it inks it will run amok. >> we have been told that if what colorado did here is sustained, other states will reliate.

they will potentially exclude another candidate from the ballot. what about thasiation? >> i tnke need to have states in our system where if they follow the processes appropriately, they will take realistic views of what 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? >> i thi whave institutions in place. the administrato tenforce the rules, the courts that will review -- that will review.

>> justice sotomayor? justice kavanaugh? e jackson? thank you. rebuttal, mr. mi? >> they rely heavily on the authority that it gives the legislature of each state direct the manner of electing. it must be consistent. there are others. a state cannot instruct its electors only toot for white candidates. nor can it violate the

constitutional holdingndhey cannot use the electorate cuse 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 section three by making it a reirent that must be m before the candidate whis seeking oice actually holds the officeessentially moving forward in time. there hastl been no and there on how to distinguish the residency cases, where e urt of appeals and applying this cou's hding have unanimously sapproved stateaws, requiring congressional candat to show that they

inhabit the state from which they seek election prior to election day. there is still no poib way to distinguish those from the situatn low. . rray also invoked the consequenc tt would follow that rejects the nationality and it agrees with section three as an officer of the u. officers that are appointed made decisions that were invalid. this court did not use any vaant to salvage the decisions that were made by the officers. there is