[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>> mr. chief justice then mayt

please t court. the colorado supreme courtel that president donald j. trump's constuonally disqualified from serving as president under section three ofhe 14th amendment. theolorado supreme court's decision is wrong and should be reversed for numerous independent reasons. first reason is that president trump is not covered by section three because the president is not an officer of the united at as that term is used throughout the constitution. officer of the united states refers only to appointed ficials and it does not encompass elected individl such as the president or members of congress. this is clr from the commissions clause,he impeachment clause and the apintments clause eac of which uses officers of the unitedtates to refer only to

appointed and unelected officials. the second reason is that section three caote used to exclude a presidential candidate omhe ballot even if that candidate is disqualified from serving as esent under canthat disability afterngress before he takes office.d but a state cannot exclude any candidate from federal office from the ballot on account of section three ananstate that does so is violating the holding of term limits by altering the from fedffice. qualifications the colorado supreme court's decision is no differentm a state residenclathat quires members of congress to habit this day prior to election day when the constitution requires only that ers of congress inhabit the state they represent when elected. in both situation atate is accelerating the deadline to

meet a conitutionally imposed qualifications thereby violating the holding oferm limits. and in this situation, reeling from this court that affirms the decision below would not only violate term limits but take away the votes of potentially tens of millions of americans. i welcome the courts questions. jutice thomas: mr. mitchell, you did not spend much time on your argument with respect to whether or not section three is self-executing. would you address that and in doing that, you -- your argument is t is not self-executing but in that case but with the role of the state ber is it entirely up to congress to implement the disqualification in section three? mr. mitchell: it is eiry up to congress juste thomas and their argument goes beyond that

section the self-executing. you need to se more than that because a non-self-executing constitutional provision normally can still be enforced by state if it chooses to enact legislatio the holding of griffin's case goeseyd that by saying a stay is not allowed to implement force of section three of the 14th amendment unless congress enacts implementing legislation allowing them too . under griffin's case, which we believe is correctly decided, there would not be any role for the state in enforcing section three unless congrs to enact a statute that gave them that aut. >> what if someone came into the secretary state's office and said, i took the oath specified in section three, i participed in insurrection and i want to be on the ballot. does the secretary of state have

the thity in that situation to say no, your disqualified? mr. mitchell: the secretary of state could not do that consistent wh rm limits. even if the candidate is an admitted insurrectionist it allows election office and see whether congress lifts the disability after the election. this happen frequently when confederatensrectionists were elected to congress and sometimes they had a waiver and sometimes they did n. each house is the le judge of the qualifications oit members. if theta band even an admitted insurrectionist to the ballot it would bedding to and alteringhe constitution's qualifications for oic because under section three the caidate need only qualify during the time the candidate holds the office twhh he has been elected. the secretary of state would be demanding a centrally that the congress opined a waiver obtain

a waiver from congress. ief justice roberts: even though it is unlikely or woul be difficult for an individual th says i am an insurrectionist ani had taken e oath, that would require two thirds of votes in congress. right? mr. mitchell: correct. chf stice roberts: that is an unlikely scenario. mr. mihe: but no secretary of state is allowed to predict a waiver because in doing so they are adding a qualification to the ability to run for congress. the proper analogy is t state residenclabecause the constitution says a member of congress must inhabit the state heepresents when elected. the lower courts have all held a reliance on term limits that an ficial cannot move that deadline any earlier by requiring a candidate of congress to inhabit the state -- chief ste roberts: en 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 say you cannot? mr. mitchell: the question would be is the person gog inhabit the state when the election ihe. if the canda makes clear rhs through a declaration or roh a statement that heas no intention of relocango that state before election d, then the secretary of state would be enforcing and it stand constitutional qualificati rather than enforcing a new state imposed qualification and that is the y der term limits. is thidaand anyway altering the criteriaor federal officeitr for congress or the presidency? in this situation the colorado supreme court is going slitl beyond what section three requires because section three on phase bands and insurrectionist from holding office. >> you admitted thathe concept

of self-executing does generally rmit states to provide a cse of action for breaches of a constitutional provision. in fact, they do it frequently. here there is no debate that colodoas placedr provided that cause of action. you want to go a step further and say that this, like the treaty clause, requires implementing legislation to permit the state to disqualify and insurrectionist. desection three. mr. mitchell: that is correct. justice sotomayor: history proves a lot to me and my colleagues generally, there are a whole lot of examples of states relyingn section three to disqualify insurrectionists first sge offices. and you are basically telling us that you want to go two steps

further or maybe three. you want us to say that self execution does not mean what it generally means. you want us now to say i means that congress must permit states or requires states tstop insurrectionists from taki state office. and so this is a complete preemption and a way that very rare. it is rare under the 14th amendment. mr. mitchell: of course, it is rare a ts is a one-off situation. justice sotomayor: i don't disagree but not with respect with the way we do find self-executing. mr. mitchell: we are not asking the court to redefine the coept of self execution. justice sotomayor: now the question is a very dfent one in my mind. i understand what you a relying on, griffin's. let's be clear. w not a presidential supreme court decision.

it was a circuit court decision by a justice who wheheecomes a justice writes in the davies case -- he assedhat jefferson davies would be ineligible to hold any office particularly the presidencynd treated, and this is his own words, second -- section three as executing itself meaning no legislation onheart of congress to give it affect you are relying on a nonpresidentia case by a justice w tes back what he said. mr. mitchell: t key point for grf's case and why it is an important precedent, it is not president of this court but it provided the backdrop agains which congress legislated the enforcemenac of 1870. justice sotomayor: idiaway with that later. itasothing to say with

respect for whatection three means. can we get to the issue which is i think one i go back to that i started with and very briefly -- what sense does it say that at cannot enforce section three against their own officials? i think logically those are two separate issues in my mind. states and force the insurrection clausagnst their own officeholders or can they enforce itgast federal officials? or can they enforce it against the esent? those are all three different questions iny nd. mr. mitchell: and the ansr to all three of those questns depends on whether this court re with griffin's case. if griffin's cases 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. justice sotomayo a presenal decision that relies on policy does not look athe language, does t look at the history, does not anaze anything other than the disruption that such a suit wod bring youanto credit as presidential. mr. mitchell:ecause congress relied on griffin's case when it enacted the enforcement act of 1870 and established -- justice sotomayor: if i may interrupt, it -- this sounds like your reply brief where you are not making a constitutional commit but a statutory --argument. is that what you are doing he? you are not sing the constitution gives you this rule. it is a combination of griffin's case plus the way congress acted afr griffin's case that gives you the role? mr. mitchell: that is exactly right, justice kagan. congre took up the invitation provided by griffin's case.

the only enforcement legislation that isurrently on the books is the insurrection criminal case and congress made all of these decisions, the initial enactment of the enforcement act, the repeal of the provisn of 1948, they were all made with griffin's case as the backdrop. the understanding was tha these remedies would be exclusive o state court remedies so there is not an express -- there did not ne t be because griffin's case provided e ckdrop. justice kagan: suppose we told all of that away, suppose there were no griffin's case and there were no subsequent congressional entmt, but do you then think the rule would be? mr. mitchell: it is a much harder argument for us to make because normally -- i mean every other provision of the 14th amendment has been treeds self-executing. there are practical considerations uniquto section

the at counsels in favor of a row similar to what chief justicehase spelled out and grifn's case and it goes to the policy concerns he talked about. griffin's case involved a convicd criminal wh was -- habeas corpus on the ous that the judge that tried his se was and insurrectionist is qualified under section three. the chief justice realized that he enforced section three it would nullify every official act taken by this particular judge by anyone who wasn't insurrecti or arguably and insurrectionder section three. >> why do you need these in -- incoeqntial. why don't you have an argument of the constitution of its own fours? -- of its own force? mr. mitchell: there could be an argumenthat is more limited. yo are suggesting a barrier under the constuon to --

legislation foseion three specific the federal officers and it could rely on presidents such as mcck. justice barrett: why aren't you making that argument? . tchell: the holding of griffin's case went well beyond that. the chief justice chase provided the backdrop r e enforcement legislation that states had no rolen enforcing section three unless congress was toivthem that authority through a statue they fast. juicbarrett: your argument is a little broader than that beuse i think if we accept your position that disqualifying someone from the ballot is adding a qualification, really your position is that congress cannot enact a statute -- because congress would be di a qualification which it cannot do either. mr. mihe: io t agree with that. congress is not boundy e

holding of term limits. they only prohibit the state from adding additional publications or altering the constuon's requirements for federal --. if congress were to enact implementing legislati that authorized the states to exclude insurrectionist from the ballot, we believe thatou 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 running for ofce. ansoif a state or congress were to go further and say that you cannot run for the office, you cannot compete in a primary, wind that be adding an additional qualification for servinasresident? you must have been free from this disqualification at an earlier pot time as section three specifies. mrmihell: the answer to your question depends on how you

interpret enforce in section five. some members of this court lieved that enforce means you ca do nothing more annact legislation that mirrors the --. that is not the current jurisprudence of this court. justice alito: we would get into e estion of whether that would be congruent and proportional. let me shift gear, i te u to argue and i think you are rig. the term self-executing is a miom as applied here. very often wn we use the term what w are referring to is the proposition that a particular provision of a constitution or a statute creates a private right of action. that is not the issue here. mr. mitchell: and sometimes the phrase self-executing is used that way but i would add that sometimeself-executing treaties -- the issue is whether 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 the quti of whether -of whom can enforce section three with respect to a predeial candidate. the consequences of what the coloradoupme court did, some people claim, would be quite severe. would it not permit -- would it not lead tohe possibility that other states would say, using their choice of law rules and theirules on collateral estoppel, that there is non-mutual collateral estoppel against former president donald trp. 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 consequee? mr. mitchell: i don't think so because colorado law does not

recognize --. anielieve the preclusive efct of that decision --. i think your question, justice alito, gives rise to a greater concern. if the decision does not have effect on other lawsuits it would have ath psility. fferent factual findings would entered by state trial court judges and they might conclude as a matter of fact that president trump not have any intent to engage in incitement or make some other finding different. justice alito: exactly. in this dision, the trial court in coloradohought it was prero admit the january 6 report and it also admtethe testimony of an expert who testified about theeang of certain words and phrases to people who communicate with and among extremists. another state court could reach

an opposite conclusion. other states could conclude that the january 6 report was admiib hearsay and they might conclude that the statements within the january 6 po are hearsay. anthey could certainly have a dierent conclusion than the expert testimony of the professor. perhaps they could produce their own witness. justice alito: should these considerations b dismiss as inconsequential or do they support a structural argument that supports the decision you are taking? mr. mitchell: i think they mutually enforce each other. we have an argument we believe it is sufficnto dispose this case just based omeing of officer of the stage. l the considerations are additionaleans to reverse the colorado supreme court although we don't think it is ney to get into consequences because the law is on our side. >> you keep saying te lits

but there are oerresidential qualifications in the constitution, a, citizenship and the 22nd amendment that does not permit anyone to run for a send term. we have a history of states disqualifying -- not all but some of disqualifying candidates who would not be of age if elected. have a history of at least one state disqualifying someone who was not a u.s. citizen. are your argumtsimited to section three? mr. mitchell: not quite. the question iwhher the state is violating term limits by adding two or altering the extent qualifications for the president and the constitution. justice sotomayor: so you want us to say -- i'ering why the termim qualification is important to you. aryosetting up so if some president runs for a third term. a state cannot disqualifyim

from a ballot? mr. mitchell: of course is taken squalify him from the ballot because that i a cash th i categorical. a stays forcing the constitution when it says you cannot appear on our bell if you have already served through -- two terms. justice sotomayor: same if they are not a u.s. citize mr. mitchell: age is mo nuanced because you could age a scenario where the person is 34 euros old at the time of the election what he terms -- turns 35 before d inauguration. justice sotomayor: that would come before us at some point. we would have dide that question then. my point is - so adding qualifications to what term limit is your argument based on? . mitchell: i will start with the age example.

if a state like colorado says you cannot appear on our presidential ballot unless you are 35 on e y of the election that ulbe a violation of termims because there could be a 34-year-o on the day of the election who turns 35 before inauguration day. what colorado where there supreme court has done here is silar. under section three president trump needs to qualifdung the time he would hold office and e colorado supreme court send a president trump, you haveo ow that you would qualify under section three now at the time of the election or at the time that we the supreme >> a point of clarification. when you say term limits you mean our decision d the term limits case. mr. mitchell: the u.s. term limits versus thorton. >> does it have something to do with the fact that the particular circumstance you are talking about can change? i'm yi to understand the distinction between the

provision in the constitution that relateso the qualification on the basis of insurrection behaviornd these other provisions that justice sotomayor points out. they all seem to me to be x stand constitutional requirements. but you are drawing a distinction. mr. mitchell: because some are categorical. >> what do you mean by categorical? whether or not you are an insurrectionist -- mr. mitchell:ecse congress can lift the disability by awo thirds vote. >> why does that change the initial determination of whether orot you fall into the category? i don'unrstand the fact that you can be excused from having been in e category -- why doe that not make it a categorical determination? mr. mitchell: because we don't know if president trp uld be sworn -- would be excused for

beg sworn in. and a court saying that president trump has to show now today that he could qualify under section three is accelerating the deadline the constitution provides for him to obtain a waiver from congress. >> tt is by virtue of the hold. mr. mitchell: correct. >> now that i have the floor, can i ask you to address your first argument which is the officer point? >> i ok if we do this? will there be an opportunity to >> absolutely.ff? [laughter] >> i just want to understand, on this theory, why does the sum total of ways that section three can benfced? that somebodyut there can say, yes, there h been a former

presenwho engaged or led or dissipated in an insurrection and so should be disqualified from office putting aside the officer argument, what is the sum total of ways that enrcent can happen? mr. mitchell: the answer to that question will depend owhat your honor thinks about griffin's case. this court were to affirm the rationale of griffin's case then the only way section three could be enforced is through congressional legislation. congress could reinstate the -- provision -- and how does that fit with a lot of the answerso e questions that we have been given. youaid congress has the ability by a two thirds vote to lift the disqualification. but so too, i would think that provision would be in some tension with what you just said. if congress has the ability to lift the vote by a two thirds

majotyhen surely it cannot beig that one house of congress can do the exact same thing by a simple majority mr. mitchell: there certainly is some tension. an some commentators have pointed th o. justice kagan: then i must be right. aughter] mr. mitchell: we don't think the problem is fatal. though two thirds provision that allows congress to ft disability is something they can do a part in power. congress can create mechanism by which the insurrection issue could be determined by some entity, each house that has the ability to judge the qualifications of the members o in a decision from congress it would be whatever congress enacts. ch federal prosecutor had e authority to bring the writ against an incumbent official and seek his ouster from oic under section three but it was still subject to the amnesty provision inecon three of the 14th amendment.

we acknowledge the tension but dohink it is an insurmountbstacle. >>f you would analogize the lifting by congress of the disqualification by a two thirds vote to a pardon, then surely we would not argue that the fact that the president or governor can pardon someone from a criminal conviction or a criminal oen meaning the pers could not be prosecuted in the first place for the criminal offense. mr. mitchell: that is right. >> i don't see the tension, there are two separate things. did the person engage in the act? and even if the person did, are there reasons the disqualification shoulde lifted or the pardon should be granted? mr. mitchell if the court accepts the griffin's case that would be the ridging that we have. chief justice roberts: i don't know if there is a limit that one -- on something that someone ca infer --

>> isn't that what yo doing? >> the intention would be that you would have the exact same actor and say the actor can lift the disqualification by a two thirds vote. and you are sayg ly that actor can put the disqualification into effect in the rsplace and it can do th by far less than two thirds. it c do that by a simple majotyf one house. >> or by doing nothing aal if the holding of griffin's case is correct. >> exactly. justice kagan: 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 on pron documents as well. >>he griffin's case is also important to figure out the original public meaning of section three of the 14th amendment.

that seems to me highly probative are -- of what the meaning or understandi of what that otherwise esi languages. mr. mitchell:e d not rely too heavily the point you a making partly because we have this other opinion from justice chase in the jefferson davis case. that argument coulpontially boomerang on us which is why we did not push it hard on our briefing. justice kavanaugh: i want to let you finish that since== -- that sentence. mr. mitchell: it might be relevant and it might undercut why grip -- why the griffin's case is completelymatic of what we are trying to point out. justice n: i had a question because you are making a contextual list argument. as i look atecon three iee two parts of the first sentence of section three.

the first is a list of offices that a disqualified person is barred from holding and second are specific circumstances that give rise to disqualification. first, am i rig about seeing athere are two different ings happening in sentence one? are you arguing both or just one? are you arguing both at the offi o 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 see at in your brief. mr. mitchell: there is a focus on the second and we had knowledge that we have a heavier lift on the first. justice jackson: why? it seems you have a list on the president is not on it. mr. mitchell: -- every time

it appears it is used in a way that excludes -- justice jackso the first argument is that we have a list of offic tt a person is barred fromding under your theory or under the language and we see it begins with senator, representative, elector of the esident and vice president, and all others civil or military offices. offices under the united states. but the words president a ve president do not appear specifically on that list. i'm tryinnderstand are you giving up that argument and if so why? . tchell: the president a vice president are not specicly listed but the anderson litigants -- >> and do you agree that the amers would've put such a high-end significant and

important office or smuggled it in through that catchall phrase? mr. tcll: we don't agree at all. that is why we are making the arguhat the president is excluded -- >> your brief says you did not make a position #a position on that point. your brief, i don't have the sitend i apologize forha but you do not affirmatively argue that point i thinks what your brief said. mr. mitchell: we certainly argued it in a reply brief. we did point out in our opening brief that there are potential issu a this court would rule under beusthat phrase appears in other parts of the constitution includi impeachment disqualification clause -- i thought the point was that section three was unique. that there was something happening with section three that could explain why certain

offices were left off or whatnot. mrmihell: perha b there are also ilitions in other parts of the constitution whic really helps us withheof 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 --esident is not covered by the >> a lot hinges on the difference bween come in your argument, between the words office and officer. and i guess i'm wondering what theory do you have from the original understandingr om a textual list perspective why those two terms so closely retewould carry such different weight? mr. mitchell: because it is cleafr the text that there are officers that do not hold offices under the united states for example the speaker of the use and the president pro

tempore who are dcred as officers in article 1 -- chosen by the legislare eylso have to be officers if they are able to be covered b the presidential succession act. the officers conservehen there is a vacancy in the presidency and vice presidey. they are not officers under the united states. if you are a member of congress you cannot simultanesl hold an office under the united states. that provision demonstrates that a mb of congress cannot hold office -- justice gorsuch: i appreciate that response. is there anything in the original drafting history discussion that illuminates why that distinction would carry such weight? mr. mitchell: not that we are arso these are textual inrences that we are drawing but we are not relying necessarily on the thought processes of these people that draft does because they are unknowab.

this language, especially ctn three, was enacted as a compromise. there were radical republicans that wanted to go much further you look at some of the earlier drafts propod. some people wanted to ban all insurrectionists from holding office and some wanted to go further and banned them even from voting. >> t you, counsel. i have one technical question. the statute of 1870, if it were still in effect, would require you to modify your aumts slightly. it was repealed as you said in 1948. i tried to find it. do you know why it was repealed? mr. mitchell: it looks like it s done as part of a reorganization of the united states code. i think a lot of things got repealed in th justice -- chief justberts: justice thomas, any further? >> is there any evidencef

other states using section three towbar -to bar -- mr. mitchell: not that i am aware. >> thank you. justice sotomayor: i would like to condone your principal arme on section three. evenhoh 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 officer of thuned states, correct? mr. mitchell: i would say it more forcefully than what you described. we believe the presidency is excluded from office under the unedtates but the aumt that he is excluded is the stronger of the two textually. justice sotomayor: a bit of a gerrymandered rule designing it to benefit your client.

mr. mitchell: i would not use thterm gerrymandered as that would suggest nefarious -- juicsotomayor: only th petitioner is disqualified because virtually every other prident except washington has taken an oath to suppo t constitution, correct? mr. mitchell: and john adams might also be excluded. president biden -- he took an oath ameer of congress and it is true of every previous president. juice sotomayor: would that be true ife were to hold more narrowly in a reversal that it is not section three that is at issue but as to whether section three could be enforced by states against the presint? >> 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 the founding generation is really thiin about office versus offic othe united states, it would suggest that we shldsk if that rule is a sensible one? if they had thought about it, what reason would they give for that rule? it does seem there is no particular reason and you could think of lots of reasons tth contrary does say that the only people who have engaged in insurrection who are not disqlied from office are presidents who have not held high office before --why would that rule exist? mr. mitchell: i don't think there is a good tial given this is compromise legislation. if there ian agreed-upon set ofor that can pass both houses of congress but different legislators may have had holes and they d n get their way

-- this was the text settled upon. and it would seeodthat president trump would fall through the cracks in aen. but there is no way that he can be covered under section three. justice kagan: is there any better reason if he goes to the office argument that justice jackson was suggesting, ithe any better reason then saying that an insurrectionist could not hold the whole panoply of offices in the united states that we are perfectly fine with th insurrectionist being president. mrmihell: i think that is theouer argument for us to make from pocy matter. of all offices that would be the one off as you would like to epn insurrectionist out of. it is why we are leaning -- we are not condi officer under but we deftly have a stronger textual cas justice gorsuch: i want to respond to some of the specific

textual arguments t officer of with the importance of the clauses. i wanted to see where you landed today. mr. mitchell: there are three teual inferences that can be drawn. but it does t y that the president shall commission all the officers of the united states. xiao is mandatory. he cannot commission himself. that is one of the first problems. the deon litigants, i think what they're tryinto say is the president cannot commiio himsel -we also have members of cgrs who are not commissioned by the president and that is because they are not officers of the unittes. the only sensible distinction we that offices of the united is states -- officers of the united

states are appointed officials. in the impeachment clause enforceshat. the president and the vice presidt are listed separately omfficers of the united stnd the appointments clausewe know the president is not appointed nor is a vice president nor are members of congress. they cannot be officers either. article one section six fit into the discussion? mr. mitchell you he be an officer to be in line of ccsion. weava federal statute that puts the speaker and the president pro tem fair in line ofuccession. they are officers but not of the united states because they are not subject to impeachment. there is a is a gap between the term officer and the phrase officers of the united states reinrcg the idea that

officersf e unitedtates are apart it does not just referred to federal fiholders. justice kavanaugh: to make sure i understand how you are using griffin's case. section three refers to insurrection and raises qutions about who decides what processes are to be used that were ratified in 1868. the next year chie justice chase opines that states do not havehe autri and that only congress h t authority to enforce tt. that could be evidence as you say of the original public meaning? your point is that it is reinforced because congress relies on th pcedent in the enforcement act of 1870 and forms the backdrop against which congress does legislate and as justice alito says, the historical practice for 155

years has been that has the way it has gone where there have not been statetis trying to enforce disqualifiti under section threegast federal officers? whether that is a federal liquidation -- do you want to add to that or alter that? mr. mitchell: that is exactly right and the last part is crucial to our aumt. congress relied on griffin's case and it pvid the backdrop against which they legislated which is why we should read these mechanisms. it is a form of imie preemption. because congress made these decisions in explicit reliance on griffi's case. justice kavanaugh: and if we agree with you on griffin's case anwh you are elaborated on ther tt is the end of the case, right? mrmitchell: unless congress

decides to enact a statute. justice kavanah: a new -- and under -- you agre that someone could be prosecuted for insurrection by federal prosecutors and if convicted, could be or shall be squalified then from office. mr. mitchell: the only caveat would be at our client is arguing that he has psintial immunity so we should -- we would not concede. justice kavanaugh: understood. justice barrett: griffin's ce was a collateral proceeding. couldriffin have -- even if section three is not a basis for collateral release in habeas which was new at the mecould griffin have raised h trial or indirect appealhe argument thatud chaffee -- you cannot legitimately sit on my case

because you are an insurrectionist and disqualified -- could he have won then? mrmitchell: not if griffin's case is correct. the court would have to reject theatnale of griffin's case. justice barrett: i think there isom lguage that might be a little broad but at bottom griffin's case is about a collateral habeas proceeding. griffin had brought his case after the fact, h needed a contract shouldn't. why would it not work in a trial for him to challenge chaffee's constitutional ability to adjudicate the ce? mr. mitchell: griffin's se holds that only congress can provide the means of foing section three. heou have to await legislation from congress. justice barrett: let's assume disagree with you about the officer argument so section

the covers president trump. let's say that congress and arks provision that would allow a state to bring such an action against him to remove him from office. wouldn't at be in some tension with impeachment? he would be exacd from office outside of the process of peachment. couldn't then president trump simply say, the only way to get me out of office is the impeachment process and not this tion? mr. mitchell: i don't ow how that would play out because the action that i am aware of under the 18 eorcement act requires --. your impeachmeypothetical would apply only in the present to any officer. i don't know how that played out inourts and if anyone tried to

argue that impeachment is the only remedy -- justice barrett: you said it is congs' exclusive province d you also said it has to imply only after someone is hointhe office and i'm asking if your implication is that congress could not enact such -- as opposed to a state one. mr. mitchell: the impeachment clseays the president, the vice president and the law offirsf the united states can't -- should be removed. congress can defund a position and effectively -- the othe relevant precedent is -- against laird where the jefrsians appealed the midnight judges act . some people thought that was unconstitutional the chief

justice upheld that. that to me as a relevant president showing impeachment is not the only way to get d a federal official. justice barrett: does president trump have any type of due ocs rightere> --? this goes more to the question of what procedures he might have been entitled to. you don't make the argument that he had any kind of constitutial protected right to ballot access and constitutionally entitled to a right to be heard? mr. mitchell: we made that argument below but not to this cour the proceedings quite charitably were highly irregular. the question seems to suggest that there might be due process issues but we did not develop that for this court for sevel

reasons. it does not do as much for our client. justice jackson: going back to -- i guess i'm just surprised with how you are rlyg to justice kagan. i did not seenyvidence that the presen was top of md for the framers when they were drafng section threeecause they were actually dealing wit a different issue. the pressing concern, at least as i see the historical record, was actually what was going on at lower lelof the government. the posbl infiltration of embedding insurrectionist into

the state government apparatus and the real risk that former confederates might return to power in the south via state-level electio either at local offices or as reprentives of the state in congress. that is a very different len you are concerned that these people -- that seem to me very different than the worried that an insurrectiost would take control of e tire national government through the presidency. -- 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 just that. justice kagan: -- just

jackson: is there evidence? . tchell: one of the drafts specifically mentioned the presidency and the vice presidency. justice jackson: but it was not the final action. mr. mitchell: it was not the final enactment but it there was some concern about some peoplt confederate structuralists ascending to the presidency. we -- we looked at the historical evidence and the other side can get back and throw out ev back in our face. we focus more on the text of the constitution because this was a compromise in section three. juice jackson: let me ask you another question because you have made any argument about the states not being abltonforce section three if wegr, what happens next? i thought you wanted us to end litigation so is there a possibility of continues in federal court?

mr. mitchell: i am sure how it could unless congress enacts a atute. justice jackson: we would have to say congressional enacting legislation is necessary for either stater deral enfoemt. mr. mitchell: that is correct. stice jackson: the colorado supreme court concluded the violent attempts of the petitioners in this case to hold the count on january 6 qualifies as insurctn as defined by seiothree. i read your opening brief to accept that those events accounted as insurrection. your reply seems to suggest they are not. what is yo pition? mr. mitchell: we ve considered this was an inrrection. ate said is president trump did not engage in any act that could possibly be characterized as insurrection. justice jackson: what is your argument that it is not? your reply says -- i think you

say it did not involve any organid tempt to overthrow the government. mr. mitchell: that is one of many reasons. there needs to be an organized effort to overthrow the united states through violence. justice jackson: a chaotic effort is not insurrection? mr. mitchell: we did not concede it w aeffort to overthrow th government. it was shameful but it did not qualify as insurrection as that rm is used in section three. justice jackson: thank you. >> thank you, counsel. mr. murray. mr. murray: mr. chiefusce, we are here becau t first time since they were 1812, our

nation' capital came under violent assault. the attack was incited by sitting president of the united states to disrupt the transfer of presidential power. engaging in insurrection against the constitution, president um disqualified himself from public office. as we heard, 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 disqualifies all both baki -- both breaking insurrectionists accepted former president who never before upheld -- held federal state or office. there is no tiale for an exemioand the court should reject the claim that the ams made an extra ordinary mistake. section three uses deliberately broad language to cover all positions of federal power

requiring an oath to the constitution. they claim difference between an office under and an office of the united states but this does not come down to mere prepositions. just a -- the two phrasear two sides of the same coin referring to any federal office or anyone wh holds one. president u's other arguments r versal ignore the role ofhetates in running presidti elections. under articlewo, states have the power to ensure their citizens' votes are not wasted on a candidate who is constitutionally barred om holding office. statesreeft to safeguard their ballot bexcluding 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:o you have contemporaneous examples? shortly after the adoption of the 14th amendment where the states disqualified national candidates, not its own candidates? mr. murray: the only example i n ink of ishexample of commerce and christie who was elected in georgia in 1868. the governor of georgia declined to certify the results of that elecon because mr. christy was disqualified. it is not surprising thathe are few examples beuswe did not have ballots in the same way back then. candidates were right in. there would not have been a process foretmining before an election whether a candidate was qualified, like the processes we have now states created under article one and article two we. justice thomas: it woul seem

particularly after reconstruction and after the compromise of 1877 and during the period of redeemers that you would have that kind of conflict. there were pthora of confederates still around. ere are any number of people who run for state offices national offices. that wouldugst there would be a few examples of national candidates being disqualified if you're reading is correct. mr. murray: there were national candidates disqualified by congress refusing to seek them. justice thomas: that is not this case. distes disqualified them? i derstand congress would not. mr. murray: other than the example i gave, no. that is not surprising because there would not have been -- states would not have the

authority to remove -- justice thomas: what was the purpose of section three? states were sending people -- the concern was that the foer confederate states would coinue being bad actors. the effort was to prevent em from doing this. you arsang this also authorized states to disqualify candidates. when i am asking you for, if you are right, what are the examples ? mr. murray: the states excluded many candidates for individuals holding state offices. we have a number of cases of stes -- justice thom: i understand the states controlling state econs and state positions, what we are talking about our national candidates. -- are national candidates. you look at shelby foote or pherson, they talk about the

conflict after the cil war. there were people who lt very strongly about retalti against the south, thracal republicans. they d n think about authorizing the southo disqualify national candidates. that is the argument you are making and what i would like to know is, do you have any examples of this? mr. murray: many of those have filed briefs, the id of the 14th amendme w with states and the federal govnmt would insure rights and if failed to s the federal government would also step in. the reason there are not examples of estates doing this isn idiosyncratic one, elections wo differently. states have a background power under artic two to run presidenal elections. they did not use that power to li ballot access until the 1890's.

by the 1890's, everyone had received amnesty. >> looking at justice's thomases -- justicehomas's question, estate shall not -- immunity, will not process it without due process. on the other hand, it augmented federal power. congress has the power to enforce it. wouldn't that be the last place you would look for authorization for the states, including confederate states to enforce the presidential election process? that seems to be aosition at war with the whole thrust of the mendment and very ahistorical. mr. murray: we would locate the

sta'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 wh're saying? mr. murray: we have reliance on sectn ree so far as article tws states this broad we to determine how their electors are elected and that power implies a narrower power to force constitutna qualifications. chief justice roberts: dinero power you're looking for is the power of dquification. that is a very specific power in the 14th amendment and you are saying that is implicit the extended to the states under a clause that does not address that at all. mr. murray: we would say nothing at the 14th amendment tesway from the states theer to determine the manner of selecting their electors in the they see fit. that power is nearly plenary -- nearly plenary a lessening entity constitution tells states they cdo it. the structure of the 14th

amendment was to expand federal power and restrict state power. states are bound to enforce section one of the 14th amendmt. it is hard to see why states would not be similarnd. >> states have the power to choose electors, granted. just because there is e authorized means under the constitution to a partul end es not mean there is any means to that end. 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 theorofection three, nor to explain the overall structurofhe 14th amendment. mr. murray: we certainly have a ng history in this country of states using their power to determine the manner of

selecting presidential electors to enforce other qualificatis in the constitution. i don'think there is a debate on whether or not states are allowed to --hecould 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, the turn -- the term insurreiojumps out and the questions are, what does that mean? how doouefine it? who decides whether someone engaged in it? at processes are appropriate for figuring out where someone did engage in that? that is what they focused oas if to sayhe are difficult questions. you look at the amendment and

that tells you that congress has the primary role. what is differenishe processes, the definition, who decides. these esons jump out when you look at section three. your response to that? mr. rr: there has tbe some process for determining those questions. the question becomes does anything in the 14th amendment say only congress can create that process? section five is not an exclusive provision. it is congress may have power. >> the question you have t confront is why a single state decides who gets to be president ofhe united states. this question of whether a former president is disqualified for insurrection, just say it, it sounds awfully national. what meanshe are to enforce it would suggesthehave to be federal, national means. ifou weren't from colorado and

u were from wisconsin or from michigan, with the michin secretary of state did is going to make the difference between whether candidate a is elected or candidate b is elected. th sms extraordinary, doesn't it? mr. murray: no, because it is ultimately this court that will dede that question of constitutional elibity and settle the issue for the nation. it is not unusual thaqutions of national importance come up -- justice kagan: this court would be saying some thing along the lis that the state has power to do it. i was asking y to go further and say why should that behe right rule? why should a single state have the ability to make this determination not only for thr noncitizens but for the rest of the nation? mr. murray: artlewo gives them the power to appoint their own electors as they see f. if they are going tuse a federal constitutional qualification as a ballot access

teinant, it is creating a federal constitutional question this court decides. if this court affirms the decion below determining president trp ineligible to be president, other stas uld have to determine what effect that has on their own state's lien procedure. justice barrett: if we said he was ineligible to be president, maybe ye debbie states with say we will keep himn e ballot anyway. it is going to have the effect of colorado decidg. i nto push back on it is a naon thing because this court will decided. you say we have to review colorado's factual record with clear error as a standard of review. we would be stuck with th record. i don't nt to get into whether the record -- maybe the record is gre. what if the record wasn't?

what if it wasn't a olsome record? the hearsay rules. what if this is just made by the secretarofuch process at all? how do we review those factual findings? wh should- apply and doesn't that buckle back into this point that justiceagan was making, with mr. mitchell, too, that it doesn't seem like a state called. mr. murray: three point yr honor. the cot views factual findings for clear error. presentrump made the point in his replyri that sometimes on constitutional questions that require uniform sotion, this court can do an independent review of the record. we would have no objection to that giv t record here -- the facts tt e disputed here are incredibly narrow. the essence of our case is president trump's statements he made in public view for all to see. juice barrett: that is saying that in this context, if we

review the fac, u want us to watch th veo of the ellipse and make a decision without any deference to or guidance from lower court fact-finding? mr. murray: president trump himself urges this court to decide the millage others -- the merits of his eligibility on the factual record of pagtw he h never at any point to suggested there is something else that needed to be in the factual record, any other witnesses he wanted toal the essence of our case is his own statements. in his own videotape stents -- >> i wanted to circle back to where juste gan was. doou agree the states -- the state's power here over its ballot has to comerosome constitutional authority? mr. murray: members of this court ha dagreed about that.

>> aasking you. mr. murrayhe majority of this courhasaid those powers come from article two. we think the result is the same whether the court located in article two or reserve power of the 10th amendment. ste gorsuch: you are not asking uso return to that -- it has to come from some federal constitutional authority mr. murray: no, we are not. justice gorsuch: we're not taing about the qualifications clause. nobody is lkg about whether he is 35 years old or natural rn. not anss. we a tking about something under the 14th amendment in section three. that is where you have to defined your authority, right? mr. murray: we find our authority in article two in a state's power to run an election . justice gorsuch: this is a federal office and ihato come from the constitution and you are seeking to enforce section three? mr. murray: we are suggesting in

their broad power to select presidential electors they see fit, they can take account of section three. justice gorsuch: could they do without section three? could they disqualify somebody on any basis they want outside of the qualifications clause? mr. murray:hat would run into term limits. juicgorsuch: so it has to come back to section three. if that is true, how does at work given that section three speaks about holding office, not who may run oic-- run for office? sms to me that you are asking to enforce an election context. provision of theonitution 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: there is nothing constitutional about a 30-year-old trying to get on the ballot. justice gorsuch: except they can get removed under section three. thoughts on that? mr. murray: the fact that there is a provision for removing the disability does not negate the fact that the disability exists today and has existed since january 6, 2021 when president trump engaged in insurrection. justice gorsuch: were his actions after that date before he left office on coherence? is that where your argument leads? mrmurray: that may be the one place and a grf's caswhe we agree which is when t justice that i talked to my colleagues and we unanimously agree you cannot collateray 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 from the. it is aut holding office and a particular kind of disability that can be removed by congress. it is the only one like it that. they cannot remove age or citizenship. how does that form our thoughts about estate's efforts to gute the ballot for a federal office? mr. murraythfact that congress has an extraordinary removal power does not negate that the disability exists today and exists indefinitely into the future, much like the facth the president can pardon somebody f cminalonction does not make that conviction somehow contingent. i would note if president trump were appointed tanoffice today as a state judge, he could not ldhat office which shows the disabili ests now. the fact that congress has power to remove theisility does not nega t 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 toommit competitor firs or people who supported e confederacy to hold office before the 14th amendment, correct? there must have been a thought that there was a pre-existing disqualification. mr. murray: tt s right. ere were a flood of amnesty requests before section three went into place -- went into effect because people understood those people would be disqualified the moment section three was enactess they received amnesty. justice sotomayor: what do you do with the consequences of your position? if colorado's position is upheld, there will be

qualification proceedings on the others and some of thoseil succeed. some will have different stanrdof proof. someilhave different rules about evidence. maybe the senate report would be accepted because it was hearsay. maybe it is beyond a reasonable doubt. i would expe, ough my predictions have never been correcta od number of states will say wever the democratic candidate is, you are the ballot -- you are off the ballot and others, your off of the ballot. it will come down to a handful of states who decided the election. that is a daunting consequence. mr. murray: theac that there are potential frivolous applicio of a provision is not a reason -- ief justice roberts: you might think differently, but the peleho bring them don't think they a fvolous. insurrections broad term. if there idete about it, i suppose that will io the

desi and eventuallyf there was an insurrection when one president did something as opposed to when someone else did something else, what do we do? we wait until near t time of cutting the ballots -- counting the ballotsor which states are valid anwhh aren't? mr. murray: there is a reason section three h been dormant, we have not seen anything like january 6 since reconstruction. insurrection against the constitution is something a short mary. chief justice roberts: it seems to me you are avoiding the estion which is other states might have different vie aut what constitutes insurrection. you areaying is all right because somebody will dede they thought that was in insurrection buthewere wrong. maybe they thought it was right and we have t develop rules for what constut an insurrection. mr. murray: just like this court inrpts other cstutional provisions, this court can mak clearhat it is something extraordinary.

it requires an concerted group effort to resisthrgh violence, not some ordinary application of state or federal law, but ons mandated by -- justice kavanaugh: on your point that it has been dormant 155 years, the other side with safety reason is chief justice's opinn in 1859 which sa congress has the authority here, not be states. that is followed up by the enforcement act of 70 which congress acts on that understanding. there is no history contrary in that period as justcie thomas: ind out -- justice thomas inted out. there is no example of states ercising such authority. th reason it has been dormant is because there has been a settled understanding that chie justice chase was essentially right and the branches of the government have acted und tt understanding for 155 years and congress can change that.

congress does have 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 because by 76, all former confederates had received amnesty. we have not seen anything like any insurrection since then. i would like to address your poin -- chief justice roberts: justice alito. justice alito: don't know how much we can infer from the fact we have not seen anything like this 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 tha10years later, there were no impeachmtsf presidents. and fairly short order over the last decades we have had three. i don't know how much you can for from that.

mr. rr: this court can wri any opinion that emphasizes how extraordinary insurrection is d w rare that is. it requires an assault not just on t alication of law but on constitutionally mandated functions. we saw andre with six a codited attempt to disrupt a function mandated by the 12 amendment and essential to the transfer of power. >> let me ask you about if the power you descbeisciplinary is really plenary. suppose the outcome o an election for president comes down to the foot of a single state -- to the vote aingle state. suppose candidate a gets a majority of the votes in that state but the legislature does not li cdidate and thanks candidate a is an

insurrecont so the legislature passes a law ordering to vote for the other candidate. do you suppose the steas that power? mr. murray: there are principles that come intolain terms of after the people have voted that the statcaot change the rules. i am not sure because i'm not aware of this court addressing it. justice alito: let's change it so it is not after the electn. three days before the election based on the fact that the polls in that state look bad. can they do it? mr. murray: i think they could under this cou's decision when this court emphasizedor much of history state legislatures assigned electors themselves but that wou be work ordinarth what we have here which is simple application of normal state baotccess principles to say we're only going to put on an individual qlied to assume the office. chief justice roberts:an i ask you the eson justice gorsuch asked?

look at that gng forward rather than judging on the baluchi guy onhealidity of any act committed between a time whenresident allegedly gas in insurrection and leaves office. during that period, wod u be lawful for military commanders an officers to disobey orders of the president in queio mr. murray: im not sure anytngives military officers the authority to adjudicate the legality of the presidency. justice alit is a he is disqualifim the moment it happens. i understand that the diff are -- the de facto doctrine mht be used to prohibit people from using judicial remedies for decisions that take place aft the date he was disqualified. if he is in fact disqualified, from that moment, why would anybody have to obey a direction from him?

. murray: ultimately there has to be some proceren place to adjudicate the qualificati congress can impeach a sitting president but that is the only remedy for negating the authority of a sitting president. stice alito: why? section three speaks of disqualification from holding office. he say he is this quafi from holding office from the moment it happens. mr. murray: correct justice gorsuch: you say there is no legislation necessary. i thought that with the o3 of your case. no procedure hapns automatically. mr. murray: you need a procedure to have a remedy to enforce the disqualification. juicgorsuch: that is a whole separate question. that is the de facto doctrine. thatoe't work here. he is disqualified from the moment, self-execung done. i would think a person who would receive a direction from the

former president in your view would be free to act as he or she wishes without regard t that individual. mr. murray: i don't think so. justice gorsuch: wipe? -- why? mr. murray: effective -- the de facto provision would come into play. justice gorsh:hat is not work. put it aside. justice alito asked a different question, i think derves an answer. on your theory, would anything compel a lower official to obey an order from the former president? mr. murray: i am imagining a situation where a former president was elected and they were 25 and ineligible -- justice gorsuch: no. we are talking about section three.

please don't change the hypothetical. i like doing it, too. is disqualified from the moment he made any insurrection, whoever he is from whatever party. that happens. it happened. what would compel -- trtonto the question -- to answer the question. what would compel a lower individual to obey that individual? mr. murray: we have rules requiring chain of command. a person is in the office, even if they don't have authority to call the office,henly way to get the office of the presidency is impeachment. if you interpret section three in light o other provisions, while they hold office, impeachment is the onlyayo validate they do not have the ability to hold that office and should be removed. >> can i ask you about something

justice kagan brought up? uniformity andheack thereof if states are permitted to enforce section three in presenal 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. mr. murray: it is n nessary. in the lack of -- either the absence of federal -- a state adjudicates them. if the state has not provided the process to comport with due process, one can make those challeng. assuming as here we have a full evidentiary record d y opportunity to prevent evidence. juste ckson: inderstand we couldn't resolve it so we have a ifm ruling on it. my question is, why e framers would have designed a system

that could rulin interim this uniformity we have elections pending and different states suddenly saying you are eligible and you are not on the bas of this kind of thing. mr. murray: what they were concerned aboutasssuring insurrectionists and rebels don't hold office. one understands the imperave they had to ensure both breakers would not take office. it would be odd to saytas account can force it -- cannot enforce it, only the federal governmentannforce it and congress can rip a heart out of section three by a simple joty. it creates redundancy. the fact that states have the ability to eor it absent feral preemption provides an additional layer of safeguards. justice jackson: i will asyou chance again.tory when i get a chief justice roberts:tice thomas. justice alito. justice alito: suppose there is

a country that proclaims again and again that t uted states is its biggest enemy. supposthpresident of the united states for the mac reasons thinks it is in the best interest of the u.s. to provide funds or release funds so they can be used by thacotry. could a state determined that person has given aid and comfort to the enemy and therefore keep that person ofofhe ballot? mr. murray: this court has never interpreted the eight and comfort languagehi is in the treason clause. it has beeneay applied because treason prosecutions are rare. commentators have suggested that aid and comfort only pls in a declared war or any adversarial relationship where you there -- where there is in fact a war between two countrs.

the standardould do a lot of workhe because under section three, whatever the underlying conduct is, it has to be done with the intent to further the purpose ofhensurrection or d the enemies. justice alito: let me come back to the question of what we would do if different states had adjudicated the question of whether former president trump is an insurrectionist ung a different record, different lings on the admissibility of evidence, perhaps different standards of proof. what would we do? mr. murray: if there were deficiencies in the record, the court could refuse to hear the ser decide based on deficienesf the record. justice alito: we have to decide what is the appropriate rule of evidence that should be applied in this case? would we have to ci what is

the appropriate standardf proof? would gen any difference to thesinngs -- would we give any difference to these findings? would we have to have ouow trial? mr. murray: no. this court takes the evidentiary record as its ven and here we have an evidentiary recor agree that the parties agree it is sufficient in this ce. there is a possibility of an independenreew of the fact. ultimately what we have is any insurrection incited -- justice alito: you are not swer my question. it is not helpful. suppose we have two different records, two different bodies of evidence, two different rulings on questions of e dabity, two different stdas of proof, two different sets of fact-finding by two different judges or maybe multiple judges in multiple states, what do we do? mr. murray: this court wouldet the legal standard and then deci wch of you the record

was correct. justice alito: which view of what record? . murray: if this court had two cases and both of the records were sufficient sor as both have t oortunity to present -- their case, then this court woulha to look at the evidence psented and decide which holding was correct and decide that issue for the country. when there is complete record, the records will be applying the decision. i think it is unlikely any cou would say we will reach a different decision than t supreme court did, particularly if the court relies on theact of what president trump said on video and in his twitter feed which is the essence of ou case. justice alito: you had an expert testified about the meaning of what presintrump said. do you think it is possible in a different state court -- a

different state court would apply 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 imagination? mr. murray:. not at all. number one, president umdid not appeal the admission of that evidce number two, the in is producing me did not opine on the meaninofrouble's words, on the effect of those words had on extremis. the essence was around videotaped statements of trump himself encouraging and praising polica violence. justice alito: i am not taking a position one way or another about whether the expert's testimonyhod have been admitted or anything like that or the meangf president trump's words, i am trying to get you to grapple with what some people had seen as the consequences of e gument you are advancing which is that there will be conflicts and

decisionamg the states. different states will disqualify differentandidates. i am not getting a lot of help from you about how this would not be any unmanageable decision. mr. : this court writes affirmin on the effects of what president trump said on january 6 and the weeks leading up to it and hiviualoncessions on twitter after the fact, it would be reversible for any state to conclude otherwise on that question of federal law or list this court can address that windows issues come up. seems unlikely. chief justice roberts: justice sotomayor? stice sotomayor: there are two sides to the other side's position. the first is that is not self-executing -- some executing. --t not self-executing. they want to say even congress

cannot do it because they need implementing listion. address that argument. a rule that states don't have it , what wld you have a say for the other side of thergument? one of my colleagues says -- circuit court justice said somehow i need plenting legislationikthe 1870 act. you seem to say that is not true becae ey could decide n to seek the candidate so i don't know if legislation is ceary. 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 ectn. in the context of the presidency, it would create a number of difficult issues if the court says there is no procedure for determining president trump' eligibility until after the election and then what happens when memrs of congress are generally sixth say we are not goi tcut electoral votes cast for president trump because his disqualified under section 300 electoral count. a number of briefs have made the point that that is a disenfranchisement and more th reason to address his issues now in a judicial proce. everybody can have certainty on those issues before they go to the polls. justice kagan: you relied on the state's powers under the ecr

clause. you talked about the states having a role in acting -- enacting valid provisions -- ballot provisions. we have put some limits onha i will give you andeonersus a busy as an example. states are limited in who they can take off of a ballot. that was a case about minor party candides the rsowas one state's decision to take a ballot off of -- a candidate off of the ballot affects everyone else's rights. we talked about national interest and the selection of candidates for national office. but talk about how any individual state decision would have an impact beyond its own borders. if that goes for minor political party candidates, why does it nogo for the situation in this case? . rray: constitutional principles like section three apply to erydy.

the issue there was a first amendment question. there iso doubt that states exercise their power und article two is constrained by first amendmenprciples. in that case, the state law deadlines for any minor party candidate are on the ballot came too soon to be reactive to what major parties have done and therefore risk disenfranchising people with who the major parties have pick. here the ino first amendment problem. a state is trying to enforce an existing qualification baked in our constitutional fabric. justice kagan: there is a broader principlthe about who has power over certain things in our del system. states have ea power over many different areas there is some broader principle about that there are certain national qstions. states are not the repity of

authority. i took a lot of deon's reasoning. what ith data doing- is a state doing the siding -- deciding who other citizens get to vote for for president? mr. murray: colorado is not the siding who other states get to vote for president, is deciding its own electors under article two. justice kagan: t effect of that is obvious, yes? mr. murray: no, differt ates can have different procedures. some states caalw insurrectionists to be on the ballot. we are not looking into constuonal questions. even in this election cycle, there are candidatesn e ballot in some states even thghhey are not natural born citizens. that is a function of states power to preserve their own disenfranchisement of their citizens.

justice kagan: thank you. chief justice roberts: justice gorsuch. juicgorsuch: have not had a chance to talk about the officer point. mr. mitchell makes the argument that in the commissions clause, all officers are to be commissionedy e president. it seems to be all-encompassing, that languag i amurus your response to that. along the way, i poked at the difference between office and officer in the other discussion. one point your friends on the outside would make -on the other sideou make is that is how the constitution uses those terms. when you're the president pro tem of the senate anisigger of the house are officers of the united states because the constitutionaythey are. you also know they don't hold any office in the united states because of the incompatibility clsehat says they cannot.

ybe the constitution to us to delay reader might look a little odd. not prepositions, nouns, a distinction. maybe that is how it works. thoughts. mr. murray: i would start with the idea tt e meaning of officer in the 1780's is the same meaning today which is a person that hos y office. in certain contexts, itppears that is referring to a narrower class offficers. justice gorsuch: 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 ises because -- that is becau t constitution says elsewhere. mr. murray -- getting the commission from the cstitution itself rather than appointment. people who get commissions from th president are not

commissioned by the esent. if you read the clause, the commissions clause is talking about the psint's power i one needs a commission, the president grants it. it is important to bring us back stion three. justice gorsuch: a distinction between office and officer. you agree the constitution does make that distinction, particularly with respt the speaker pro tem? mrmuay: the constitution makes that distinction at least section three, any officer of the united states is a person who swears an oath and holds any office. the president pro tem and speakeof the house don't ea it constitutional oath in that capacity. case where an oath that they are a senator or revisit if in congress. justice gorsuch: there are office w do not hold any office? mr. murray: there are officers who may hold any office but don't swear any oath. justice gorsuch: how can they

hold any office under the incompatibility becau -- incoatility clause? mr. murray: that may be an ceion to the general rule and some may consider them officers of the house and senate because they preside over those bodies. stice gorsuch: the constitution says they are officers of the united states. there are some institutions -- some instances where you have any officer but not any office. mrmurray: those may be existent in some circumstances. justice kavanaugh: other questions about different states having different standards o proof seem underscored by this casethdissenting opinion where justice amore said i have been involved in theusce system 33 years now. what took place here does not

resemble anythini ve seen in courtroom. and then added, "what transpired in this litigatil short of what do process demands." i don't know if i agree o but the fact that someone is complaining about the bottom line conclusion but the processes ud in this state and that that would be permitted underscores the concerns raised about state power. want you to have a chance to address that because thais powerful language. not about the conclusion but the fairness of the process. mr. murray: that language with respect to justice more was not correct. pridt trump had a five day trial, he had any oortunity to call any witnesses. we had an opportunity to cross-examine witnesses. he had the opportunity to testify. the process was expedited beus ballot access decisions

are alysn a fast schedule. omhe trial court up to this court, president trump has never identified a single process other than expert definitions he wanted to have that he did not get. he had the opptuty for ckwardness definitions, he had the opportunity cl witnesses remotely. there was ample process here. this is how ballot access determinations in election cases are decided all the time. justice kavanaugh: some of the rhetoric of your position seems to suggest unless the states c do this, no one can prevent inrrectionists from holding federal office. ngress has enacted statutes, including one in effect, pribs insurrection, a federal criminal statute if you are convicted, you shall be disqualified from holding any office. there is a federal statute on

the books but president trump is not charged with that. what are wtoake of that? mr. murray: section 23 was acd six years before section three. i would emphasize that by the time section three was ratified, most confederates had received criminal pardon. justice vaugh: theueion is different which is if the concern you he, which i understand is that insurrectionists sulnot be able to hold federal office, the residual to su that does not happen, namely feder prosecution of insurrectionists. if convicted, congress made ear you are medically barred from holding a federal office. that truly exists and could be used against someone who considered joshua committed inrrection. -- someone who considered -- someone who committed insurrection. . murray: that is right.

section three made clear that criminal prosecution is not sufficient because oftentis insurrectionists go unpunished as was the case in the civil war. even if we don't have the stach -- justice kavanaugh: a provision was in eect from 1870 to 1948, buth dropped out and has not been seen as necessary since then. in trying to figure out what section three means to e extent othlanguage, what about the ideahat we should thk out democracy, think about the right of the people to elect candidates of their choice , letting the people decide? your position hashe effect of disenfranchising voters to a significant degree. does that come in and we think out should we read section three this way or read it that way?

what about the background princil that democracy? mr. murray: i would like to make three points. constitutional safeguas are for the purpose of safeguarding our democracy, not just for the next election cycle but for generations to come. sectiothe is designed to protect our democracy in that way. e amers knew from painful experience that those who had brok tir oath to the constitution could not be trusted to hold power because they could dismantle our democracy fromitn. they created a democratic safety valve. trump can ask congress to give them amnesty, but unless he ds that, our constitution protects us from insurrectionists. this case illustrates the danger of refusing to apply section three has written. the reason war here is esident trump and tried to disenfranchise 80 million americans who voted against him and the conion does not require he be given another

chance. chief justice roberts: justice barrett. justice barrett: the road is that absent rare circumstances, state courts and fedel urts share authority. there are certain litto that , limits to which the constiti preempts the state's ability to resolve constitutional questions. you said earlier that on a president is elected, youcct a staging could not do anything about that. lodo cannot enact its own provision and use it to get the secretary of stateutf office. i assume that is bau of this principle of structural preemption? mr. murray: yesyo honor. justice baet iant to clarify what that means. that means your aches are in the sk of the electorate clause. you are saying that even though all of the questions have suggested there is a problem

wi giving a single sta t authority to render a decision that would have any effect on a national election, you are saying those structural ncns which might otherwise lead to the kind of results y wld accept after someone is in office, overcome by the electric cross. mr. murray:bsolutely. states run presidential elections. what states have selected electors and they ve voted, states have no more weover the candida w 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 outhe uniformity concern and the dish ifmity of having different states enforce section three with respect to pridential elections, you seemedo point to history in a certain way. you said i think the framers

envisioned states and forcing section three -stes and forcing section three at least in some circumstances. my view of history, i am wondering whether presidentia elections were such a circumstance that the framers actually envisioned states and forcing section three with respect to presidential elections as opposed to narial elections, representatives, more woeful concerns. can you speak to the argument that section three was about preventing the south from rising again in the context of the local elections as opposed to focusing on the presidency? mr. murray:wo points on that, first was as i discussed rlr, there is not the same history of states regulating ballot access.

ballot accs les 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 between ballot access and anything else. mr. murray: understood. what is very clear from history is the frarsere concerned about charismatic rebels who might rise through the ranks up to and including the united states president. stice jackson:hyon't you put presenin the enumerated list in section three? the thing that is troubling to me is i understand your arme, but they were listing people that were barred and president is not there i guess atakes me worried they were not focusing on the president. r example, the fact that electors of the vice president and president e there suggest if we are worried about the charismatic person, we are going bar insurrectionists electors

and therefore that person is no longer going to rise. mr. murray: this came up in the detes in congress over section three where johnson said why ve you not include president and vice presidentn e language? senator moore response, we have. any officend the united states. justice jackson: doesn't that suesambiguity? th ties into justice kavanaugh's point. we had a person at the time saying what i am saying, the language does not seem to include president. why is that? if the i ambiguity, why would cstrue it to >> johnson came back -- it is clear that the constitution says abt 20 times. christ let me just say. your point is that there is no ambiguy.

with this conversation where the gislators actually discussed what looked like ambiguity, you are saying there is no ity. >> this is important. they do not hold an office. they vote. >> i'm talking about the office part of this. >> first you have to specify electors. they would not fall under any office. theyo t hold office. the constitution told us tt under the clause and refers to them. you want to make sure that there is no doubt the area covered, given that this constitution suggests otherwise.

other high offices, 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 happens nt in this case? is it done? >> if this court concludes that colorado d n have the authority to exclude trumpi think this case would be done but i think it could come back with a vision -- with a vengeance because th wld have to make the determination about whether or not he i disqualified from office. esent trump himself looks to resolve. >> there is no federal litigation, you would say?

>> that is crect. short of criminal prosecution. >> thank you, counsel. >> mr. chief justice, y please the court. far-reaching pows der the clause specifically directed colora's court to resolve any challenges to a candidate on the presidential primary ballot. they contend tha colorado must put him on the ballot because o the possibility of a super marity act of congress. under ts theory, colorado and every other state would have to dulge this possibility not just for the primary but through

the general election. nothing in the constitution ri them in this way. the case was handled capably and efficiently under a process that he used to decidealt challenges for more than a century. i welcome your questions. >> is there an express provision that the- that defines what a qualiecandidate is? >> there is not an express provision. they look at the need to be qualified. >> how do we get to this issue of qualified candidates? >> if i could have a standing objection, you should not review

-- >> i'm just looking at the statute. >> weavthree important provisions that show that candidates have to be qualifie it requires that the political party has to have a candidate. the candidates also have to be qualified. >> we are actually talking about the participation of a political party, right? not the participation of a candidate. >> the fight -- the fact is confirmatory that they had to be qualified and would not be otherwe. >> how is section three qualification? just on its face. >> a candidate must meet every criteria for elibity.

not beingisalified. eris a difference between ose two things. >> you represent the secretary of state, if you are the sry of state and someone comes in to say, i think this candidate should bdiualified, what do next? if they obtain objective information, 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 procedurehawas filed, maybe they had a stack of paper sayin ihink this is why theern is guilty of insurrection.

it is something that happened down the street, but they say this is still an insurrection. >> anything not even presented that level of controversy wou sit in -- if another individual who brought the information brought it, the secretary could bring that action. >> is there any provision in colorado a with what you know abt her states? >> a can use the 113 process to do so. there are other states that allow other versions of that. >> i think we are told that

there are states that do not provide for review. is tt incorrect? i think that is correct. some do not have a mechanism to come to. there are some states that do not have any mechanism to exclude a candatfrom the ballot at all. i want to speak about - would that be constitutional, if the secretary of state's determinatn s finally? >> i think tt uld be constitutional. they had a broad authority. can a state that provides different rules of evidence and diert standards of proof with this proceeding >> it is

under the same power. >> perhaps aifrent provision. >> there are other constitional constraints. what is the due process right? what is the liberty interest? >> tnk there is a coition and there is some due process interest in being able to process the ballot. >> i thought that was for voters. did you init would be taking somethinaw from the candidate? >>andidates can have an issue about being on the ballot. it is a qualifications clause all stacked together.

>> these decisions might be 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 have discretion. it might be based othprocess employed by an individual state. you could exercise independe review or you could give deference to a full proceeding. >> i'm cite. thinkould give deference in reviewing the factual record and conclusions? weitand amenable to

suggestion for iepdent review as to what the court's position is. >> we could reach disparate results on the same record, right? >> i think that is possible. >> this disqualification ishe same as any other disqualification. residents or what have you. >> that is correct. >> what if i push backat and say this disqualification to the point of the 14 andment was to take away certain pow number two, section three itself congress a very definite role that mr. mitchell says is interfered with by the ability oftates to take somebody off the ballot. it is just more complicated and more conteed why don'all of those things

make a difference? >> think the trouble with categorizing it is an asmpon that is coming up because of thisas back to the chief jtice's point, we could have an easy case with a insurrection who wrote on his paperwork, i engaged 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 bed on the states havg e power to enforceection three like we do other qualifications. i would defer to them on those points. >> suppose a state that does recognize and makes the

determination to adopt that partulandidate as in insurrtiist. could have a cascading effect so that a decision by a single judge whose factual findings are given deference, maybe a trial dgwouldav an enormous effe o candidate to run for president across the country. is that something that we should be concerned about? >> the concern is maybe not as high as it could be. theris huge amount of spity in different states and every election. there is a candite that they disqualified on the ballot. it was a feature of our process

with respect to decision-making, we give nationwide guidce that reducesheotential amount of disparity between the states. with respect to the factual record, they have processes for this. i think we need to let that play out because that is what the electors clause assumes will happen. ngress can act at any time, if it inks it will run amok. >> we have been told that i what colorado did here is sustained, other states will retaliate.

they will potentially exclude another candidate from the ballot. what about that situation? >> i think we need to have states in our system where if they follow the processes appropriately, they will take realistic views of what insurrti 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 think we have institis in place. the administrators to enforce the rules, the courts that will review -- that will rie

>> justice sotomayor? justice kavanaugh? justice jackson? thank you. rebuttal, mr. mitchell? >> they rely heavily on the authority that it gives the legislature of each state to direct the manner of electing. it must be consistent. there arotrs. a state cannot instruct its electors only to vote for white candidat. nor can it violate the

constitutional holding and they cannot use the electorate clause as an excuse to impose additional to go bond the constitution. the problem with what it has nes that they have cnged the criteria in section three by making it a requirement that must be met before the candidate who is seeking office actual holds the office, essentiall moving forward in time. there has still been no d there on how to distinguish the residency cases, where the court of appeals and applying this court's holding have unanimously disapproved at laws, requiring congressional candidates to show tt ey inhabit the state from whi

they seek election prior to election day. eris still no possible way to distinguish those from the situation below. mr. murray also invoked the consequences that would folw that rejects the nationality and it agrees with section three as an officer of the u.s. officers that are aointed made decisions that were invalid. this court did not use any variant to salvage the decisions that were made by the officers. there is no way to escape the conclusion that if theyeject

the case and also agrees with section three that every executive actionak by the trump administration during hi last two weeks in office is vuerle to attack. if he is reelected and sworn i, any execute tion he takes in federal court by anyone who continues to believe that president trump is barred from office under section three. i'm happy to answer any other questions that the court might have. >> thank you, co the case is submitted. >> the honorable court is now adjourned