as c-span now, our free mobile app or wherever you get your podcast. c-span, your unfiltered view of politics. >> a healthy democracy doesn't just look like this, it looks like this. where can see democracy at work. when citizens are truly n, our republic thrives. get n-straight from the source on c-span, unfiltered, unbiased, word for word. from the nation's capital to wherever you are. opinion that matters the most is your own. this is what democracy looks like. c-span, powered by cable. >> hearing from former president donald trump speaking about todas preme court ruling in his favor in a case challengi his eligibility to be on the ballot in 202 the u.s. top court overturned

colorado supreme court ruling saying the formeprident was ineligible to run for office agn because of his actions leading to the january 6 attack onhe.s. capitol. corado voters who argued the former president engaged in be president under section 3 the 14th amendment. we bring you that oral argument which is just over two hours. l e 23719 trump v anderson. mr. mitchell? mr. ll: mr. chief justice and may it please the court. e colorado supreme court held that president donald j. trump is constitutionally disqualified rving as president under ion 3 of the 14th amendment. the coloupreme court's decision is wrong and should be reversed for numerous ndent reasons. the first reason is that president trump is not covered by section 3 because the prt is not an officer of

the united states as that term is used throughout the constitution.

in both situations a state is accelerated the deadline to meet the deadline of the constitutionally imp qualificat and is therefore violatinholding of term limits. in the situation a ruling from court below would not onlye e term limt take away the votes of potentially tens of millions of americans. i welcome the courts questions. spend much time on yourdidn't arguments with respect to self-executing.n three is would you address that.

in doing your argument is that it is not self-executing so in that case what ith the state be or is entirely up to congo imple we need to say something more than that because a nonstop executing treaty are self-executing constitutio is

hez with determine for lf what to seek that elected insurrection so it's a

state than baltering the constin qualification fice because under section thr candidate need only qualify during the t the want -- candidats the office to which she's been elected. the secretary of state would be demanding essentially that the candidate obtain a waiver from congress earlier than the candidate needs to othat waiver. >> even though it is pretty unlikely or at leastficult for individual who says i am in insurrectionist and i have taken the oath that would require two thirds of the vote in congress. pretty unlikely scenario. know secretary of state isoda n doing so they are adding a new the proper analogy, mr. chief

justice, is state residency laws. the constitution says a member of conmust inhabit the state he represents when elected. thr courts have all held in re on term limitshat a state election official c move that deadline any earlidatf congress to inhabit the state. >> even if somebody comes in and says i'm a resident, secretary of state's office inf i, i wanto run for office in illinois. the seetsay, no, you can't? >> the question would be is that person going to inhabit th state when the election is held, so if the candidate mes clear aps to a sworn declaration that he has no intention of relocating t state before election day, then the secretary of state would be enforcing annexed and consultation of qualification rather than enforcing a new state imposed that is the key term under

limits. is this altering the criteria for a federal office either for congress or for the presidency? in this situation the colorado supr court is going slightly beyond what section three requires because section on its face dance in insurrectionist only from holding office. >> stop you a moment and backup? you admitted the concept of self-exe does generally permit states to provide a cause of action for breaches of a constitutional provision. in fact,do it frequently for tasting. here is no debate that colorado hasd, provided that cause of action. you want to go a step further and say that this, like a treaty clause requires implementing legislation to permit the state to disqualify an insurrectionist

under section three history gues generally. there is a whole lot of emples insurrectionists for state you are basicelling us that you want us to build two steps further. maybe three. yout us to say self execution doesn't mean what it generally means, you want us now to say it means that congress must permit states or requires states to st■ insurrectionists from taking state office a this is a complete■ preemption a way that is very rare. it is rare under the 14th amendment. mr. mitchell: oh, of course, it is rare. th-- this is a one-off situation. and, your honor, the only thini-

justice sotomayor: well, it is one-off. i don't disagree with you. but it is not with -- with respect to how we define self-executing. mitchell: we are not asking concept of non-self-execution. we were careful in our brief not to rely on that phrase. and griffin's case doesn't -- justice sotomayor: right, you are, because it is not. tchell: that is right. justice sotomayor: all right. mr. mitchell: and griffin's case justice sotomayor: so now the question is a very different one -- mr. mitchell: mm-hmm. ice sotomayor: -- in my mind. i understa are relying on let's just be very clear. mr. mitchell: right. justice yor: griffin was decision.cedential supreme court mr. mitchell: that is correct. justice sotomayo right. it was a circuit court decision by a justice who, when he becomes a ju writes in the davis case, he assumed that jefferson davis would be eligible to particularly the presidency, and treated -- and thiis words -- mr. mitchell: mm-hmm. justice sotoma- section iii as executing itself, needing no legis on the part of congress to givefe so you are relying on a non-precedential case by a

justice who later takes back what he said. mr. mitchell: but thpoint with griffin's case and why it is an importanedent, despite everything your honor it is not a precedent of this cout griffin's case provided the backdrop against whicress legislated the■÷ enforcement act of 1870 when it first providenforcement mechanism for section iii. jumami: it did away with it later. but, as -- justice sor: but -- but that has nothing to say with respect to what seiii means. can we get to the issue, which is, i thne that i go back to that i started with, and -- and very briwhat sense does it say that states can't their own officials?against mr. mitchell: be -- justice sotomayor: and i think, logically, 13 those are two separate issues in my mind: can states enforce the insurrection clause against their own office holders, or can they enforce i nst federal officials, or

can they enforce it against the president? those are all three different questions in my mind. mr. mitchell: e -- the answer to all three of those questions on whether this court agrees with the holding of griffin's case. g's case is ther enunciation of the law, then a state cannot do any of t unless congress gives it authority to do so through implementing legislation. justice sotomao a non-precedential decision that relies on policy doesn't look at the language, doesn't look at thory, doesn't analyze hing than the disruption that such a suit would bring,res precedential? mr. mitchell: because congress relied on griffin's case when it enacted forcement act of 1870 and established the -- justice kagan: so, mr. mitchell, if i may interrupt just tos sounds like you are not making a constitutional arg you are

really making a statutor preemption argument. and -- mr. mitchell: right. justicn: -- is that -- is cotion gives you this rule. it is the kind of combination of n's case plus the wayffin's case -- mr. mitchell: yes. justice kagan: -- that you the rule? mr. mitchell: that is exactly right, justice kbecause we have implementing legislation, congress took up the invitation provided by griffin's case and established writs of quo warranto in the 1870 enforcement act, later rd them. the only enforcement legislation that is currently on the books is the insurrection criminal statute, section i3. and when congress made all of these decisions, the initial enactment of torcement act in 1870, the repeal of the quo warranto provisions in 1948,ll of thosemade with griffin's case as the backdrop. the under -- justgan: i -- please. mr. mitchell: well, the ressionally established remedies would be ive of state court remedies. so there's not an express statement of preemption in these statutes, but there didn't ne to be because griffin's case provided the backdrop. justice kagan: and if i could just underste argument a little bit better, suppose that

we took all of that way away. you knppose there were no uent congressional there were enactment. what do you then think the rule would be? . mitchell: so in just as a matter of first princi without griffin's case, it is a much harder argument for us to make because, normally, i mean, every otheision of the fourteenth amendment has been treated as self-exg. whatuld argue in the hypothetical that your honor h suggested is that there are actical considerations unique to section iii that counsel in favor of a rule similahat chief justice chase spelled out in griffin' and it goes to i think the policy concerns he talks about, whis was a■kóbpt■. case -- griffin'■'s ca a convicteinal who was seeking a writ of habeas corpus onund that the judho tried his case was an surrectionist disqualified under 16 section iii, and justice chase realizes that if situation, it would nullify every official act tot only by this particular judge but by anyone who is an insurrectior arguably an insurrectionist under sectionico you need those consequential concerns, though? i mean, it kind of seems to me

that what justice kagan is getting at is why don't you have an argument that the constitution of itforce, that section iii of its ownpts's ability not necessarily, i think, not, to enforce section iii t its own officers but against federal officers, like in a tarble's case kind of way. also be an argument that is more limited. you are suggesting there may be a barrier under the constitutiln enforcement mechanism for section iii ic to federal officers. as mcclung that says that state courts lack the authority to issue mandamus relief agains federal officials and extend that principle here. justice barrett: well, why aren'you making those arguments? mr. mitchell: because that doesn't get us -- that -- g's case -- justice barrett: that only get you out of state court, it doesn't get you federal court? mr. mitchell: right. and also the h of that because chief justice chase said in this opinion, which n provided the backdrop for the congressional enforcement legislation, that states had no role in enforcing section iii that authority through a statute that they pursuant to

their legislative powers. e gorsuch: i -- justice barrett: but your argus e t: i was just going to add one last thing. i think your argu's a little broader than that because i think, if we accept your tion that disqualifying adding a qualification, really, your position is tharess can't enact a statute allow colorado to do what it is done either becaen congress would be adding a qualification, which it can't do either mr. mitchell: , i't agree with that, justice barrett. congress is not bound by the lding of term limits. terms only prohibits the states from adding additional ifications or altering the constitution's qualifications for federal office. it does not purport toain congress. so, if congress were to enact implementing legislation that authorizedtates to exclude insurrectionists from the ball believe that would be valid enforcement legislation under section iii with an rtant caveat. there has to be congruence a proportionality under this court's precedents. justice alito: well,hy would that be an important -- why would that be permissible? because section iii refers to the holding of oic not running for office.

and so, if a state or congress were turther and say that can't run for the office, you can't compete in a primary, wouldn't that be adn serving for president?on for you must have been free from this disqualification at an earlier in time than section iii specifies. mr. mitchell: i think the answer to your question, justice alito, depends on how you interpret the enforce" in section iii 5. and some members of this court, that "enforce" means you can do legislation that mirrors the fourteenth amendments self-executing requirements and you can't goch beyond that. that is not the current jurisprudence of this court -- justice alito: no. well, all right. you have -- mr. mitchell: -- that allow -- justico: -- to decide whether it is congruent and proportional. mr. mitchell: right. justice alo: and wul into the question of whether proportional. congruent and well, let me shift gear a little t. i -- i take you to -- to argu i term "self-executing" is athe misnomer as applied here. mr. mitchell: yes, it is. justice alito: very often, when we use the term, what we are

referring to is the proposition that a plar provision of the constitution or a statute in and of itself creates a private right of action. that is not what the issue is here. mr. mitchell: no, that is not the issue here. and sometimes the phra the only thing i would add is sometimes it is usa different sense. with self-executing treaties or non-self-executing treaties, the issue is whether that treaty has anrc whatsoever. justice alito: right. right. well, i don't see what is gained by using this term which is used in diffeontexts rather than directly addressing what's involved here, which is the tion of who can enforce presidential candidate.t t mr. mitchell: mm-hmm. justice alito: the consequences of what thrado supreme court did, some people claim, would te severe. wo not pert not lead to the possibilat other states would say, using their choice-of-w les and

their rule- on collateral estoppel, that there's non-mutual collateral estoppel against former president tru and so the decision of the colorado supreme could effectively decide this question for many other states, perhaps all other states? could it not lead to that consequence? mr. mitchell: i don't think so because colorado law does not recognize non-mutual collateral el. and i believe the preclusive fect of the decision would beaw rather than the law of another state. but i think your questio justice alito, gives rise to an even greater conceause, if this decision does not have preclusive effecther lawsuits■iit opens they differt factual record could be developed in some of the litigatit occurs in other states, and different factual findings could be entered by state trial court judges. ey might conclude as a matter not have any intent to engage in incitement or make some other findinth justice alito: yeah, exactly. so this --

in this decision, the -- the that it was proper to admit the ary 6th report, and it also admitted the testimony of an pert -- mr. mitchell: mm-hmm. 22 justice alito: -- who testified about aning of certain words and phrases to people w ccate with and among extremists, right? mr. mitchell: yes. justice it another -- another state court could reach an opposite conclusion on both of those questions. mr. mitchell: certainly. other states could conclude that e january 6th report is inadmissible hearsay. they might also conclude that statements within the y 6th report were hearsay even if the report itselot. and they could certainly reach a different sion with respect to the expert testimony of professor simi. perh another state, we would have time to produce our own sociology expert who would contradict professor simi. justice alito: now should -- ould these considerations be consequentialist arguments, or do they support a al argument that supports the position that you are taking here? mr. ll: i think they all mutually reinforce each other.

we have an argument, we believe, is sufficient to dispose of this case just based on the meaning of "officer of the united states," as well as the argument we are making based on term limits, but all of the conseqlist considerations that your honor has suggested are additional reasons to reverse the colorado supreme courhough we don't think it is necessary to get into consequences because the law is clearly on our side.you keep saying term limits. there are other presidential constitution, age.the mr. mitchell: yes. justice sotomayor: cship. there's a separate amendment, the twenty-second ent, that doesn't permit anyone to run for a term. we have a history of states ualifying -- not all, but candidates who won't beg we have a hist at least one state disqualifying someone who wasn't a u.s. citizen. mr. mitchell: right. justice sotomayor: is -- are arguments limited to section iii? mrhell: not quite. the question, justice sotomayor,

is whether the sta violating term limits by adding to or altering the extant qualifications for the presidency in the constitution. now the hypo -- justice sotomayor: so you want rm limits qualification is important to you. . mitchell: because it -- justice sotomayor: are y president runs for a third term, that a state can't disqualify him from the ballot? mr. mitchell: of course, a state can disqualify him from the ballotse that is a qualification that is gorical. it is not defeasible by congress. so a state is enforce constitution when itay can't appear on our ballot if you've alrerved two terms as president. the same goes -- justice yor: the same if they are under age when elected the same if they aotmrhell: they are not -- well, the same if they are not a u.s. citizen for sure. the age is a little more nuanced because you can imagine a scenario where the person is

34 years old at the f the election, but he turns 35 before inauguration day. jusotomayor: well, then that would come up -- a could not -- stice sotomayor: -- that would probably come up to us at some the state would make a decision and say he's ineligible but my point is so what -- adding qualificato what term limit -- mr. mitchell: you are -- justice sotomayor: -- is your argument based on? mr. mitchell: you are changing -- justice sotomayor: i'just confused. mr. mi: okay. with respect to the -- maybe i will start with the agple. justice sotomayor: mm-hmm. mitchell: if a state like colorado says you can't on our presidential ballot unless you 35 years old on thof the election, that would be a violation of term limits bechere could be a■-yd oe election who turns 35 before auguration day. what colorado has done h done, is similar because, under section iii, presirump needs to qualify during the time thatuld hold office, and the colorado supreme court is saying to ent trump: you have to show that you would quunder section iii now, at the time of the election, or at thethat we, the state supreme court -- justice sotomayor: now i understand. justice kagan: so what -- what

-- just a point of clarification so we are all on the same page. when you say "term limits," you mean our decision in the term limits case -- mr. mitchell: yes. i'm sorry. chief justice roberts: -- not the constitutional provision governing term lim mr. mitchell: yes. u.s. term limits against thornton. maybe i should call it thornton chief justice roberts: that would be easier. . tchell: i'm sorry. justice jackson: and does it have some -- justice sotomayor: i -- i was confused. justice jackson: so does it have something to do with the fact he particular circumstance that you are talking about can chan is that what you mean? 'm trying to understand -- mr. mitchell: yeah. justice ja -- the provision in the constitution that relates to disqtion behavior -- mr. mitchell: mm justice jackson: -- and these other prov that juic theyeem to me to be extant constitutional requirements. so you -- but you are drawing a distinction. mr. mitchell: right. i'm drawing a distinction because some of them are cal6godo you mean by "categorical"? whether or not y an insurrectionist is or is not categorical? mr. mitchell: nockecause? mr. mitchel: -- because congress can lift the disability by a two-thirds vote.

and there justice jackson: but -- but why does -- why does that change the initial determinof whether or not you fall into the category? i don't understand the fact that you can be e from having been in tegory -- why does that not make it a categorical determination? mr. mitchell: because we don't kn whether president trump will be excused before he's sworn in, if he wins the and a -- and a court that is saying that president trump has ho would qualify under section iii is accelerthe deadline that the constitution provides for him to obtain a waiver from congress. justice jackson: but that is by virtue of the "hold," right, "hold office." this is -- mr. mitchell: correct. yes. justice jackson: okay. mr. mitchell: section iii bans him only from holding office. it does not -- justice jackson: all rig can i ask you -- i'm just -- now that i have thr -- mr. mitchell: yes. justice jacksocan i ask you to address your first arguwhich is the office/officer point? justice kagan: could -- could -- justice jackson: oh, sorry. chief justice roberts: yeah, why don't we -- ste kagan: -- uld we -- stice kagan: is that okay if we do this and then we go to that justice jackson: sure. sure, sure, sure justice kagan: you know, but --

justice jackson: gd. justice kagan: will there be an opportunity to do "officer" stuff, or we chief justice roberts: absolutely. absolutely. [laughter] justice kagan: i just want to understand. so, on -- on -- on this theo that the -- that section iii can be enforced, that -- that -- mr. mitchell: yeah. justicn: -- that somebody out there can say, yes, there has be a former president who engaged or led or participated in an insurrection and so should be disqualified from o argument --de the officer mr. mitchell: right. justice kagan: -- what is the mr. mitchell: so the answer to that question is going to depend on what your thinks of griffin's case. so, if this court were to affirm the rationale of griffin's ca henlleion that creates a remedy. so congress could reinstate the quo warranto provisions that they initially had in the 18-- justice kagan: is that your position? mr. mitchell: yes, because we believe griffin's case is correctly decided and should be follow justice kagan: and how does that

fit with -- a lot of the -- the -- twers to the questions that we've been giving, you said, well, congress has to have the ability by a two-thirds vo ift the disqualifition. justice kagan: but so too i -- i would think that that provision would -- would -- would be in some tenith what you just said -- mr. mitchell: there is some, yeah. justicn: -- because, if congress has the ability to lift the vote by a two-thirds ty, then surely it can't be right that one house of congress can do the exact same thing by a simple ma. mr. mitchell: yeah, ere certainly is some tension, justice kagan, and some commentators have pointed this out. professor baude and professor sosesharply. justice kagan: then i must be right. [lr] ink it is -- we don't think thisem is two-thirds provision that allows congress to lift a dity is something akin to a pardon power, where congress, through enforcement leion, creates a mechanism by which the insurrectionist issue is to be determined by some entity, it be the legislature in the case of an elected member ñe

congress, each house has the ability to judge the qualifications of their members, or if it is outse situation of congress, it would be whatengress enacts. so, when it was the writs of quo warranto, eachal prosecutor had the authority to brquo warranto writ against an incumbent official and seek his ouster from office under section iii, but it was still subject to that amnesty provision in section iiie so we do acknowledge the tension, but we don'think that is an insurmountable obstacle in the case. justice alito: i don't even see why there's -- why there's a tension. if you anagi the -- the lifting by congress of the vote to a pardon, then, surely, one would not argue that the that the president or a governor can pardon someon a criminal convict a criminal offense means that the person couldn' prosecuted in the first place for the criminal offense. mr. mitchell: that is right. e alito: right? mr. mitchell: yes. justice so i don't see what the tension is. theyrewo separate things. did the person engage in this activity which is prohibited

and co, enac, are there reasons why the disqualificatithe -- should be lifted or the pardon should be granted. mr. mitchell: that is right. i mean, if -- again, if the court accepts the ing of griffin's case, that is exactly the regime that we would have, like the court described. justice alito: yeah. i don't see there's a n. justice kagan: but i guess i don't -- stice alito: but, also, there's a limit on what one can from the mere fact that congress can lift the diualification. you can't infer from tat prior determination that thea person did engage in t insurrection. yocan't make that inreay. justice alito: it is not logical. justice kagan: well, but i think -- juicjackson: yet isn't that what you are doing? justice kagan: -- what's -- what' what's -- what's -- what's in tension is that you would have the exact same actor and say, , that actor can lift -- mr. mitchell: right. justice kagan: -- the disqualification by a irds vote. but you are saying only at actor can put the the first place and it can doin that by far less tha two-thirds. it can do that just by a simple majority of one house. mr. mitchell: or -- or it could do that by doing nothing at all if -- if the holding of grifficase is correc because just -- inaction would -- justice gan: but that means that there will -- mrhell: -- effectively act

as a -- justice kagan: the only thin takes -- mr. mitchell: yeah. justice kagan: -- to h action -- mr. mitchell: right. ice kagan: -- is -- you know, is, you know, half plus one saying we don't feel like it. mr. mitchell: but that is why we tried to characteriz griffin's case argument the way we did where we rely on preemption doctrines as well. so we have -- justice kavanaugh: well, don't -- don't you think -- chief justice rort why don't we -- justice vanaugh: -- griffin's case is also relevant to trying to figure out what the original public meaning of section iii of the foth amendment is? it is by the chief justice of ited states a year after the fourteenth amendment. eems to me -- mr. mitchell: yes. e kava understanding of that ge, otherwise elusive language, is. mr. mitchell: i do think it is prob justice kavanaugh. we didn't oo heavily on the point that you are making, partly becauhave this other opinion from justice chase in the jefferson davis case. so that argument couldpolly boo, which is why we didn't t very hard in our briefing. f justice roberts: thank you. mr. mitchelli think your■' is is -- chief justice roberts: w't you finish your sentence and then we will move on. mr. mitchell: just it is -- it isant and probative for sure, but i think there is other evidence too that might perhaps undercut the uess of

trying to characterize griffin's case as completely emblematic of the original understanding. chief justice roberts: then why don't we move on to the office mrmitchell: certainly. chief justice roberts: and justice jackson, i think you -- justice jackson: yes. so iad a question about it because you are making . mitchell: mm-hmm.. justice jackson: and as i look at section iii, i see two parts of the first sentence of section iii. mr. mitchell: mm-hmm. jujackson: the first is a list of offices that a ualified person is barred specific circumstances that give rise to disqualifica so, first, am i about)6 seeing that there are two different happening in the first sentence? mr. mitchell: yes, for sure. justicn: okay. case or just one? are you arguing both that th fice of the presidency should barred offices -- one of the mr. mitchell: mm-hmm. justice jackson: -- and that the person -- a person who previtook the presidential oath is not subject to disqualification? mr. mitchell: we are arguing both, your honor.

justice jackson: i don't see that in your brief. mr. mitchell: well -- justice jackson: i see a lot of focus on the second but not on the first. mr. mitchell: -- there is definitely more focus on the , and we acknowledge that we have a somewhat heavier l on the first point just because -- list and president is not on it. mr. mitchell: that -- that is certainly an argument in our favor, but are also -- with respect to "officer of the united states," s used repeatedly in the constitution and the mmsions clause and the appointments clause and also in the impeachment clause, and every time it appears, it is used in a way that clearly udes the president. justice jackson: no, i understand. mr. mitchell: so we don't -- justice jackson:ut that is t d the -- justice jackson: so the first argument -- mr. mitchell: mm-hmm. justice jackson: -- is we have a f offices -- mr. mitchell: yes. justice jackson: -- that a person is barred from holding, mr. mitchell: yes. justice jackson: -- under your theory or under the -- the language of -- mr. ll: mm-hmm. justice jackson: -- and we see it begins with senator, retative, elector -- mr. mitchell: elector. justice jackson: -- of the ident and vice president, and all other civil or my officers -- offices. mr. mitchell: offices under the united states -- justice jackson: offices under the united states. mr. mitchells how it is phrased. justice jackson: but the word sident or vice president"

justice jackson: -- in that list. guess i'm trying to understand, are you giving up that arg justice jackson: and, if so, why? mr. mitcno, we are not giving it up at all. you are right, thedent and the vice president are not specifically lisut the anderson litigants claim that they are enced within the meaning of the phrase "office under the united states." and that -- justice jackson: and do you agree that -- th framers would have put ant office, sort of smuggled it in through that catch-all phrase? mr. mitchell: no, we don't agree at all. the argument that the presidency is excluded from the covered offices that are listed at the beginning of section iii. sorry, your brief says you didn'ke a position on that point. mr. mitchell: i'm sorry. justice sotomayor: andour brief said -- i don't have the -- the cite, i -- i apologize -- mr. mitchell: okay. justice sotomayoyou don't think is what your brief said. mr. mitchell: in the blue brief? justice sotomayor: yes. mr. mitchell: well, we certainly argued t r

-- how we phrased it. but we did point out in our opening brief that there are tential issues if this court because that phrase appears in other parts of the cution, including the emoluments clause, the impeachment disqualification clause, and it would -- justice jackson: would we necessarily have to say -- i mean, i thought -- i thoug the point was that section iii was unique, that there was som happening with section iii that d explain why certain offices were left off or whatnot. mr. mitchell: rhfrom oer parts of the constitution which really help us on the er in that second part of section iii but somewhat cut against us when it comes to "office under the united state and the anderson litigants point this out in te in the red brief where they say, if this court o say the presidency is an excludedff unittes, that could imply, for example, the president is not covered by the emoluments -- justice gorsuch: mr. -hell -- mr. mitchell: yes. justice gorsuch: -- stepping back on this -- mr. mitchell: mm-hmm. justice gorsuch: -- a -- a lot hinges on the difference between

-- in your argument between the term "office" and "officer." mr. mitche: s. justice gorsuch: and i -- i -- i guess i'm wondering what theory do youfrom an original understanding or a textualist perspective -- mr. mitchell: mm-hmm. ice gorsuch: -- why those two terms so closely relat would carry such different weight? mr. mitchell: because it is clear from the conional text that there are officershoir the united states, for example, the spof the house and the president pro tempore. theyescribed as officers in article i who are chosen by legislature. they are able to be covered by the presidential succession act because, under theitution, only officers can serve when there'cancy in both the presidency and the vice presidency.heofficers, but they are not offices under the united states because of the atibility clause, which says that if you are a membe congress, you cannot multaneously hold an office under the united states. so that provision of the constitution clearly demonstrates that -- justice gorsuch: i -- i -- mr. mitchell: -- members of congress can' offices. justice gorsuch: -- i -- i appreciate that response. is -- is thereing in the

original drafting, history, discussion that you think iltes why that distinction would carry such profound weight? mrmitchell: not -- not of which we are aware. so these are textualnf justice gorsuch: yeah. mr. mitchell: -- from intratextualist analysis. justice gorsuch: yeah. mr. mitchet we ar' relying necessarily on the thought proces the people who drafted these provisions because they are unknowable. but, even y were knowable, we are not sure they would be relevant in any event because this language, especially in section iii, was enacted as a mpromise. republicans who wanted to go much further if yo at some of t-he proposed. some peopled to ban all insurrectionists from holding office regardless of whether they previously swore an oat some people wanted to go further and ban them even from voting. chief justice roberts: thank you. i just have one very technical question. the statute in 1870, if it were still in effect, would require you to modif arguments slightly. it was rep as you say, in 1948. i tr find it, but i

couldn't. do youw led? mr. mitchell: no, we don't know it looks like it was done as part of a reorganization of ther there was any policy motivation behind that decision. i think a lot of things got repealed during the decisions that were made. ief justice roberts: okay. justice thomas, anything further? justice alito? justice alito: is there any history of states using section iii asral officeholders? mr. mitchell: not that i'm aware, justice abecause of griffin's case. i mean, griffin's case has been the law -- and i shouldn'say that it is been the law because it was just a circuit co decisideing of section iii since 1870 when it was decided. justice alito: thank you. chief justice roberts: justice justice sotomayor: i just want to pin down your principal ar on section iii. president may or may not qualify -- presidency may or may not qualify as a united staour principal argument is thhe aofcer of the d states, correct?

mr. mitchell: yeah, i would say it a little more forcefully th what your honor just described. we believe the presidenc excluded from "office under the united states," but the argument we have that he's excluded, the presidenan officer of the united states is the stronger of the two textually. justice sotomayor: ah. mr. mitchell: it has fewer implications for other constitutional -- justice sotomayor: a bit of a gerrymandered rule, isn't it, designed to benefit only your client? mr. mitchell: i certainly wouldn't call it gerrymande we are -- justice sotomayor: well, that you d't make it up. i know some scholars have been discussing it. but just so we are clear, under thding, only -- only the petitioner is disqualified cause virtually every other mr. mitchell: mm-hmm.ington -- justice sotomayor: -taken an oath to support the constitution, correct? mr. mitchell: that is right. every president -- to our knowledge, eveer president excluded because he took the oath as president, which is not an officer -- but, yes, president biden would certainly be c. he took the oath as a member of congress. and that is true of every previous president. justice sotomayor: would that

if we t is not section iii that is at issue but thornton and others as to whether section iii can be enforced by states against the pres mr. mitchell: that would extend at -- justice sotomayor: exactly. tchell: -- not just our client. that is correct. justice sotomayor: not just to yours. mr. mitchell: yes. justice sotomayor: okay. thank you. chief justice roberts: justice kagan? justice kagan: and if i could just understand, i given that you say you don't have a lot of evidence that the founding gion -- or the generation that we are looking at is really thinking about "office" versus "officer of the united states," i mean, it -- it would suggest that we should ask what -- is that rule sensible one? you know, if they had thought about it, what reasowod they have given for that rule? and it does seemough there -- there's no particular reason, and you can of lots of reasons for the contrary -- mrmitchell: right. justicn: -- to say that the only people who have engaged inrection who are not 48 disqualified from office are idents who have not held

high office before. why would that rule exist? mr. mitchell: yeah. i don't thine is a good rationale given that this was compromise ltion. and sometimes this happens with statutory compromises and even constitu compromises. words that can pass both houses of congress, but different legislators may have had goals and motivations. they didn't all get their way. in a compr everyone goes but this was the text that was settled upon. and it does seem odd that president truld fall through the cracks in a sense, but if "officer of the united states" appointed officials, there's just no way he ccovered under section iii. the court would have to reject our officer argument to get to that pnt. justice kagan: and is there any better reason, if you go to the son was suggesting, is there■ any better reason for sa that an insurrectionist cannot hold the whole panoply of offices in thed states, but we are perfectly fine with that insurrectionist being president? mr. mitchell: i think that is an even t argument for us to make as a policy matter because

ond think, of all offices, the presidency would be the one u'd want to keep out the confederate insurrectionis of the army. so, again, that ise are leaning more on the "officer of" argument than the "office under." we are not conceding "office under," but initely have the stronger textual case and structural case on "officer of the united states."■ justice kagan: thank you. mr. mitchell: thanks. chief justice roberts: justice gorsuch? justice gorsuch: do you want to "officer of" with respect to the appointments clause, t the others? clause, and some of mr. mitchell: yeah. so the way -- let's start with -- justice gorsuch: but why -- mr. mitchell: well, i will start with t been bouncing -- mr. mitchell: yeah. justice gorsucon that back and forth, and i wanted to see where you landed t mr. mitchell: there are three textuarences that could be drawn from each of those provisions your honor just med, but the commissions clause, i think, is the strongest because it says "the ident shall," you know, commission all the officer the united states. "shall" is mandatory. "all" is all-encompass and the president doesn't commission himself, and he can't mmission himself. so that is onee first problems. i think the an litigants

are trying to say, you know, there's somehow an impli exception there because the president obviously can't commission himself, so we should construe that to mean al besides the president. states but you also have meof congress who are not commissioned by esident, and that is because they are not officers of the united states. so the only se distinction that we can see, given the language of the commissions clause, is that officers of the united states are appointed ficials, and elected officials, such as members of congress and the president and the vice president, are and the impeachment clause president, and all civil officers of the united states shall be removm office upon impeachment for and convictiall high crimes and misdemeanors. the president and the vice president are listed separatel from officers of the united states. and then, of course, the president is not appointed pursuant to article ii. hehe vice president. neither are members of congress. so they can't be officers either. justice gorsuch: and how does d?

mr. mitchell: and this is about officers being in the li succession? justice gorsuch: yes, exactly. tchell: right. so you have to be an officer to be in the lineccession. we have a federal statute that puts the speak the president pro tempore in the line of succession. but they are not officers of the united states becaus are not subject to impeachment, thee president, and they are not appointed pursuant to article ii so there is this gap between t icers of the united states," reinforcing the idea that "officers of the united states" is a term of art that doesn't refer just to federa officeholders, which is what the anderson litigants are claiming, but refers only to who are appointed, not to those who are elected. justice gorsuch: thank you. chief justice roberts: justice kavanaugh? justice kavanaugh: can i just make sure i understand how you are using griffin's case again? section iii refers to insurrection and raises questions about who decides what that is ratified in 1868. th chase opines that states do not have the authority, that only congress has the authority to enfoat.

ould be evidence, as you say, of the original public meaning, at least some evidence. mr. mitchell: mm-hmm. justice kavanaugh: it precedent, although not binding. but your point then is it is reinforced because congress itself reliehat in the enforcement act of 1870 ans the backdrop against which congress does legislate. and then, as justice alito says, historical practice for 155 years has beenthat is the way it is gone. there hasn't -- there haven't been state attto enforce disqualification under section iii against federal officers in the years mr. mitchell: right. justvanaugh: so whether that is a federalist liquidation nt, it all reinforces what

forcement mechanisms -- and, right now, the only one le the federal insurrection statute, 238s exclusive of state court remedies. it is a -- it is a form of impliemption, almost sea clammers implicit preemption 54n explicit reliance on griffin's ca justice kavanaugh: and if we agree with you on griffin's ca and what you've elaborated on there, that is the end of the case, right? mr. mitchell: it should be, yes, unless congress decides ct a statute, which we can't -- justice kavanaugh: a new -- mr. mitchell: -- rule out the ssibility. justice kavanaugh: -- a new statutddition to 2383. and just to be, under , could be prosecuted for insurrection by federaloss and,, be or shall be disqualified then from office? mr. mitchell: yes. but the only caveat that i would arguing that he has presidential immunity. so we would not concede that he can be prosecutewhat he did on january 6th under 2383. justice kavanaugh: understood. asking- question about the theory of 2383. thank you.

mr. mitchellthk you. chief justice roberts: justice barrett? justice barrett: so griffin's case was a collateral proceeding, so it is habeas lief. have -- so even if section iii is not a basis for collateral relief in habeas, which was new at the time, could griffin have raised atrial or in direct appeal the argument that sheffey, judge sheffey, you ow, you can't legitimately sit -- or constitutionally sit■ case because you a insurrectionist and you are disqualified? could he have won then? mr. mitchell: no. mr. mitchell: not if -- not if griffin'case is correct. so a court would have to reject the rae of griffin's case to accept what your honor was suggesting. justice barrett: well, why? said, griffin's case -- i mean, i think there's some ge that might be a little bit broad -- justice barrett: -- but, at bottom, griffis case is about a collateral habeas proceeding. and griffin had brought his case after the fa he made it a cause of action. why wou't it work in a trial for him to challenge sheffey's constitutional ability to

adjudicate his case? mr. mitchell: but what griffin's case holds is that only congress can provide the me enforcing section iii. and under yoor's hypothetical, congress has not enactesuch statute that would give mr. griffin the right to rhose types of arguments at his trial. so he would have to await legislation from congress. t' oice barrett: okay. argument, so section iii covers president trump. let's say that congress enacts a quo warranto provision that it doesn't really matter this purpose, even -- even a deral prosecutor, to bring remove him froce -- mr. mitchell: mm-hmm. justice barrett: -- in a quo warranto way. wouldn't that be in some tension with impeachment? office outside of the proc impeachment. couldn't then president trump simply say, well, ly way to get me out of office is the

impeachment s and not this quo warranto action? mr. mi: so i don't know how that would play out because o warranto actions that were brought that i'm aw under the 1870 enforcement act were brought against s officials. and your honor's impeachment hypothetical would apply not only to the president but any federal -- justice barrett: i know. mr. mitchell: -- officer of the united states. justicett: i know. mr. mitchell: so i don't know how that playein the courts and whether anyone ever to arghaor -- justice barrett: well, i don't ink anybody did argue it. i guess what i'm ass, you know, you said it is congress's exclusive province. mr. mitchell: yes. justice barrett: and you also said that it has to apply, you know, after holding office, is elected. and i'm asking whether then the ation of your argument is that congress could not enac such a provision that appliedho that were covered by section iii as opposed to state ones? mr. mitchell: i bethey could. the impeachment clause says that the president, the vice presidnd also the officers of the ustates shall be removed from office upon iment and conviction, but

it doesn't say that is the way you can remove them. , congress can defund a position and effectively, it is not quite the same as formal removal, but the relevant precedent is stuart against laird when thersonians repealed the midnight judges ace positions for federal judges. and some people thought that was untutional because they thought the only way you could eliminate federal judges was through impeachment, but justice marshall upheld that statute. so that to me is aelant precedent showing that impeachment is n only way to get rid of a federal official.barrett: okay. let me ask one question, and this is just a point of president trump have any i mean, i'm wondering, this kind of goes not to the cf action point or the preemption point but moree question of what procedures he might have been entitled to. you don't make the argument that he was entitled to any, nor did i see the argument that he had any kind of constitutionally protected right to ballot ac that he was, you know, constitutionally entitled to an

opportunity to be heard. is that right? mr. mitchell: we -- we made -- justice barrett: he hano due mat argument below. we did notthat in our briefs to this court for several reasons. i mean, your honor's, i think, suggesnd this is correct that the proceedings below, to put it charitably, were highly irregular. justice barrett: well, i wasn't suggesting that. i was just asking -- mr. mitchell: i'm sorry. the question -- justice barrett: yeah. mr. mitchell: -- see suggest that there might be due process issues. but we didn't p that argument in this court for several issues. winning on dss doesn' as the other arguments that we'ade because that would be a ruling specific to this particular proceeding in the of colorado and would leave the door open for colora to continue on remand to exclude m from the ballot. justice barrett: okay. thank you. chief justice roberts: justice jackson? justice jackson: going back to whether the presidency is one of the barred officesi -- i guess i'm a little surprised at your response to justice kagan becausought that the history of the fourteenth amt actually provides the reason for why the presidency not be included. and by that, i mean i didn't ses

when they were drafting section iii because theyactually dealing with a different issue. the pressing concern, at least as the historical record, s actually what was going on at lower levels of thess infiltration and embedding of insurrectioniststhe state government apparatus and the real ris former confederates might return to powehe south via state-level elections either in representatives of the states in congress. lens.hat is a very different your concern is trying to make sure that these people don't come back through the state apparatus and control the government in that direction se me very different than ■qthe worry surrectionist will seize control of the entire nati presidency.through the and so i just am surprised that

you would -- given the text of the provision and the historical context that seems to demonsthat their concern or their focus was not about the that argument up. mr. mitchell: there -- there is some evidence to suggest that, justice jackson, but -- justice jackson: is there any evidence to suggest that the presidency was what they were focused on? mr. mitchell: there is some evidence of that. don't want jefferson davis to be elected prt, and there was also -- one of the drafts of section ecifically mentioned the presidency and the vice presidency -- justice jackson: but it wasn't the final -- mr. mitchell: -- office. justice jackson: -- but it wasn't the final enac so where do you -- final -- it wasn't -- justice jackson: right. mr. mitci'm sorry. it wasn't the final enactment, but s show that there was some concern by some people about conf and we didn't want to make a law office history type argu where you just look at the historical evidence and pick the evidence that we like and interpret it tangentially use the other side can come back with us and throw this tervailing evidence back in our face. so we wanted to focus more on the text of the constitution bethis was ultimately a compromise provision that was enacted in section iii, and --

justice jackson: all right. let me ask yther question -- mr. mitchell: mm-hmm justice jackson: -- about the states because you have forcefully made ument about the states not being able to enforce section iii. so, if we agree with you on , i thought you also wanted us to end the litigat so is there a possibility that this case continues in federal court if that is our conclusion? mr. mitchell: i don't see how it could unless congress were to enact a statute in response to this court's decision. justice jackson: so your point is tt would -- we would have to say congressional ting legislation is necessary for either state or justice jackson: all right. final question. the coloradome court concluded that the violent attempts of the petitioner'spp t count on january 6th qualified as an insurrecs defined by section iii. and i read your opening brief to

accept that those events counted as an insurrection, but then your reply seemed ug so what is your position as to that? mr. mitchell: oh, we -- we never insurrection.onceded in our what we said in ouing brief was president trump did not engage in any act that can plausibly be characterized as insurrection because he did not engage -- justice jackson: all right. so why this not be an -- what is your argument that it is not -- your reply brief says thwasn't because, i think, u say, it did not involve an organized attempt to ove the government. so -- mr. mitchell: that is one of many reasons. needs to be an organized, there concerted effort to row the government of the united states through violence. and this riot that occurred -- justice jackson: so your point is that a chaotic effort to overthrow the government is not an insurrection? mr. mitchell: no, we didn't concede that it is an effort to overthrow the government either, jujackson. none of these criteria were met. this was a riot. as not an insurrection. the events were shameful, criminal, violent, all of those things, but it did not qualify as insurrection as that term is used in section iii because --

justice jackson:hank you, counsel. mr. mitchell: thank you. chief justice roberts: mr. mr. murray: mr. chief justice, and may it please the cour w are here becaur the first time since the war of 1812, our nation's capitol came under violent assault. for the first time in history,y sitting president of the united states to disrupt the peaceful transfer of presidential power. by engaging an insurrection against the constitution, presidenp disqualified himself from public office. asard earlier, president trump's main argument is that special exemptio screate a that would apply to him and to him alone. he says section iii disqualifies all oath-bre

insurrectionists, except a former president who never before held other state or l office. there is no possible rationale for such an exemption, and the t should reject the -- the claim that the framers made an traordinary mistake. section iii uses deliberately broad language to all positions f requiring an oath to the constitution. my frilies on a claimed difference between "an office under" and "an officer of the does not come down to mere prepositions. the two phrases are two sides of the same coin, referring to any federal office or to anyone who holds one. president trump's other arguments for reversal ignore the constitutional role of t ates in running presidential under article ii and the tenth amendment, states he per to ensure that citizens' electoral votes are not wasted on a candidate who is

constitutionally barred from holding office. stre allowed to safeguard their ballots by excluding those who are under age, foreign-b term, or, as here, tho have engaged in insurrection against the conson, in violation of their oath. i welcome the court's questions. justice thomas: do you have contemporaneous examples -- and shortly after the adoption of the fourteenth amendment -- where the stat d nationaldates, not its own candidates, but national candidates? mr. murray: the only example i ink of, justice thomas, is the example of governor -- of -- of congrestywas elected in georgia in i believe 1868, and the governor of georgia refused -- or -- or declined to certify the results of that on because mr. christy was disqualified.

but i think it is not surprisi that there are few examples because weidvets in the same way back then. candidates were eithte-in or they retyn'run the ballots in the same way, and there wou't have been a process for determining before an elewhether a candidate was qualified, unlike the prs that we have now that states have created under th article i and article ii powers to run elections. buould seem that particularly after reconstructionfter thecose of 1g the period of redeemers that you would have that kind of lict. there were a plethora of there were any number of people who would continue to run for state offices or national offices. so it would seem -- that would suggest that there would at least be a few examples of national candidates being disqed if your reading is mr. murray: well, there were

certainly national candidates who were disqualified by congress refusing to seat them. justice thomas: i understand that, but that is not this case. i'm talking -- did states disqualify them? that is what wtalking about here. i understand congress would not seat them. mr. muother than the example i gave, no, but, again, onor, that is not surprising because there wouldn't have been -- states certainly wouldn't have the authority to remove a sitting justice thomas: so what's the purpose of the -- wh the the states wnding people -- the concern was that the former confederate states would continue being bad actors, and the fo was to prevent them from doing this. and you are saying that, well, this also authorized states so what i'm asking you for, if you are right, what are the examples? mr. murray: well, your honor, the examples aretates excluded many cans for state office, individuals holding state offices. e a number of published

cases of states concerning that. thes controlling state elections and state positions. what we are talking about here are national candidates. the -- i understand. you look at foner or foote, sh fon all talk about, of couhe conflict after the civil war, and there were people who felt very strongly retaliating againssouth, the radical reans, but they did not think about authorizing the south to disqualify national and that is the argument you are making, and what i would like to know is you give -- is do you have any examples of this? mr. murray: many of those historians have filed briefs in ouort in this case, making the point that the -- the -- the idea of the fourteenth amendment was that both states a federal government would ensure rights and that tes failed

to do so, the federal government certainly would also step in. but i think the reason why there aren't examples of states doi this is an idiosyncratic one of the fact that elections wo states have a back power under article ii and the tenth amendment toresidential elections. they 't use that power to police ballot access until about the 1890s. and by the 1890s, everyone had received amnesty and these issues had become moot. so i don't think thstrts: i'd le to sort of look at justice thomas's question sort of from the 30,000-fvel. i mean, the whole point of the fourteenthmendment was to restrict state power, right? states shall not abridge ivilege of immunity, they won't deprive people oerty deny equal protection. and on the other it augmented federal power under

ss has the power to enforce it. so wouldn't that be the last place that you'ok for authorization for the states, including confederate stto enfoe -- implicitly authorie ential elecn process? that -- that seems to be a positionis at -- at war with the whole thrust of the fourteenth amendment and very ahistorical. mr. murray: no, your honor. states' authority to runhe presidential electot in the fourteenth amendment but in article ii. and that power is merely plenary to determine the means -- chief justice berts: yeah, but you are relying on -- you have no reliance on section iii, is that what you are saying? you he we have reliance insofar as it gives the broad power to elected and are part power implies a narrower power to enforce federal constitutional -- chief e roberts: narrower power is the power of disqualification. that is acific power in theym■ 14th amendment and you a

saying it was implicitly extended to the states under a clause that does not address that at all. mr. murray: nothing in the 14th amendment takes away fro state their broad and nearly plenary powertermine the mayor of selecting their electors in the manner they e fit. it is unless som in the constitution tells the states they cannot do it. the structure of the 14th states are bound& enforce andand appl section one of the 14th amendmentnd it is hard to see why states would not be bound or at least -- chief justice roberts: this includes the lesser argument, the legislature has the power t choose electors granted. auth example it does not mean there is any. means to that end. i think you are taking the

electors argum ■.■ we have a long history of states using their power to determine thean of selecting presal electors to enforce other qualifications in constitution, there is not a great debate whether or not stays or to exclude underaged or foreign born candidates or president bush or obama, they could be excluded under that broad article to power. i do not see why section three should be treated any differently. session three speaks in the -- justice kavanaugh: the term insurrection jumps out. questions are what does that meando you define it, w

des, who decides whether someone engaged in it? what processes are appropriate for figuring■í out whether somee did engage in that? that is all what the chief focused on a year after the 14th amendment to say are difficult questions and you look at section five of the 14th amendment as a chief justice said and that tells you congress has the primar here. i think what is different is the processes, definitions, who decides, questions jump out at you when you look at the sec three. mr. murray:ertainly there has to be some process for determining those questions. the ques becomes is anything in the 14th amendment say only congress can create that process? section five is not an exclusive provision. they shall have power. >> i think the question that you have to confront is why a single

state should decide who gets to be president of the united iohether a former is disqualified for insuon to be president me.in, it is awfully national to whatever means there are to enforce it would suggest that they have to be federal, national. if you were not from colorado and you were from wisconsin, or fromichigan, and it really, at the secretary of state did is to make the difference between whether candidate a b is selected, that seems quite exinary? mr. murray: it is this court that decides this question of constitutional eligibility and settle the issue for tion. certainly it is not unusual that questions of national importance come up. >> this court will be saying something along the that

the state has the power to do it t i guess i was asking you to go further and say why should that be the right rule? ould a single state have theis determination not only for their own citizens, r the rest of the nation? mr. : article twoes them the power to appoint their n electors as they see fit. constitution qualification as a ballot a■ ccess determinant, its creating a federal constitutional question th is discord. ffirms the decision below about whether president ts ineligible to be president, other states had to determine what effect i would have on their own estates procedure. if we affirmed and said he was ineligible to be president, yes. >> some states woulde are going to keep him on the ballo anyway but it will have the effect of color deciding and it

is i want to push back it is theational thing because this court will decide it. you say we have to review colorado's records so we would be stuck, the first mover in colorado, we are stuck with that record. i do not want to get into whether the record, it may be is if the record was not? what if it was not a full record? the hearsay rules, they are secretary of state without much process at all? how do we review those factual findings? why should that apply and does that police back into the point that another justice wasing that we made with mr. mitchell it ot seem like the cos trump made the point thatsident

unconstitutional que that require a resolution this court can do more, an independent review of the record and we have no objection to that given that the record disputed here are iny narrow and the essence of ou case is president trump's own statements. >> that is sent in this context which is veryh-ak facts that yot us all to watch the video of the ellipse and make a decision without any different to our god is from lower court that is unusual. mr. murray: preside trump urges this court never at any point in thishe has proceeding suggested there was something else that needed to be in a factual record, any other witnesses he wanted to cal present his case. the essence of our case is his own statement and in particular,

his ipse. juicthomas: i wanted to circle back to where i justice was. you agree that the 's power here is over its ballot for a federalit has to come from some constitutional authority? >> memf this court have disagreed about that. >> i ang you. the majority of the court has sat it comes in article two, butlt is the same whether a located in article two or under the amendment. >> you have said this cot held g thissking us to revisit that, whatever you want to call it, it has to come from some of constitutionalhority. mr. murray: all right. " >> the close lotions clause.

-- the qualicaons of clause, we are not talkiut whether he is a federal born citi that is not an issue. we aking about something under the 14th■ a in section three, you have defined your authority. mr. murray: if i article two iny power to run elections. this has to come fr constitution and you are seeking to enforce section three? mr. murray: we are suggesting that in the power to determine the sely manner they e fit, they can take a of section three. >> can they disqualify somebody for whatever basis theyunder th? mr. murray: that would run into turn limits. -- term limits. >> i is true, how does th work given theection three speaks about holding office rather than running for office?

i want to give you a chance to respond, you are asking to enforce an electiohe context. the office.on speaks to hold different from the qualifications clause which is all about who can run and serve. mr. murray: i do not know if it is different. talk about eligibility f the office, there is nothing unconstitutional about a 30-year-old trying to get ballot? >> this disability can be removed under section three? that is what is different about it. what are your thoughts on that? mr. murray: the fact there is a provision for room and this does not make that the disability exists today and it has existed since january 6th when donald trump engaged in insurn. >> or hions after that date before he left office that would raise a separate question of 110 attack

the actions of a de facto i would go in the very end and we would ahich is where juchase said agreed that you cannot collaterally attack all officials and actions were holding the position. >> let us circle back to ere we stathe section three that hcome from there, but i it is not holding office and a particular kind of disability that can be removed by congress. the only one like that that they cannot remove citizenship. thatce state efftso regulate the ballot for a federal office? mr. : the call we had with justice alito, it is illuve, the back congress has an extraordinary rem power does not negate this ability existing today and i exists indefinitely into the

future much like the fact that congress said the president pardon somebody from conviction and it is not make the conviction contingent rate of president trump was appointed to office he could not hold that office whi■t exists now. the fact that congress has a power to remove the disability is not n are the does it bestow on president trump a constitutional right to run for office that not arete procedure under article two. justice kagen: there was a congressional action to permit officers people who suord the confederacy to hold office before the 14th amendment, correct? there must have been a thought that there was a pre-existing qualification. mr. murray: there was a flood of amnesty requts even before section three went intoect,

everybody understood at the time that those people would behis qualified -- would be disqualified forever unless they received amnesty. >> what do you dwi the what seems to consequences of your position? why is colo's position is upheld, there will be ificationceedings on the others and to some of those will ha d have different rules about evidence, a biddy senatet will be acce because it is hearsay. maybe itbeyond a reasonable doubt. expect althy predictions have never been correct, i would thaf states will say over the cratic and it is off of the ballot and others for republicanéq b it will

come down to a handful of states that are going to decide the election and tha'at is a pretty mr. murray: the fact there are potential rimless applications of the constitutional provision is not a reason -- >> hold on, people are bringing it may not think they are frivolous. insurrection is a broaderm and if there is some debate about it i suppose that will go into the on and eventually probably be deciding whether there was an insuon when oneth opposed to whn somebodylse does something else and we wait until the time of counting the ballots and got there which states are valid and which states are? mr. murray: there is a reason why section three has been dormant bee like january 6th se ou are avoiding the question which is other states may have

different views about wha constitutes instruction and you are saying it is all right because somebody pres us thought i was an insurrection but they were wrong. maybe they thought it was right and we had to develop rules for what constitutes up insurrection. mr. murray: like thisrt interprets other constitutional issues, this is something extraordinary and in plar concerted group effort to resiough violence not some ordinary application of state or federal law, -- >> on your point it has been dormant for 155 years i think the other side would say the reason for that is chief justice ass opinion in griffin's case tocongress has the authorie not the state, that is pulled up by torcement act of0 in which congress acts upon the understanding which is followed and there is no history contrary, it is as thomas

pointed out, there is nory contrary iof the years leading up to this of states exercising such authority. i the reason it has been dormant is b there has been a settled understanding thef justiceessentially right st the ranges of government ed under the subtle understanding and congress can chhat. congress section 23, the insurrection, actiminal statute but congress can change it and they have not in 155 been dormant is by 1876ason it s essentially all former confederates had received amnesty. we ht seen anything likei wou lr point. >>ustice alito? with i do not know how much we can infer from whatve not seen.

we have not seen anythin this before and therefore conclude we will ever s me of the impeachment president johnson, until the impeachment of president clinton, more than 100 years later, there were nochment of president's in fairly sho order for the last coupl decades, they have had three. w much can you infer from that? mr. murray: cou can write nion that emphasizes how extraordinary insurrection against the constitution is. how rare that is be it requires an assault not ju the application of law, but on constitutionalted functions like we saw on january h, a correlated to disrupt function mandated by the 12th amendment and assent of the constitutional -- >> let me ask you about the powehave described as between is plenary. the outcome of an election, it

s down to theote of a single state, how the electors of the vote of a single state are going to vote. the can, candidate gets a majority of the votes in that state, but the legislature reals not like a and i think they are an ectionist the legislature passes the final law, ordering its electors to vote for the other candidates. ■/mr. murray: there may be principlt come into play interns and the people have voted that congress and the state cannot change the rules. i'm not sure about the court addressing it anainly, let us change it so it is not after ection. >> it is three days before the election based on ct that the polls in the state look bad. can they do >> i think they could under the court's decision where this court emphasized that for much

of american histo state legislatures picked thei electors and assign their own tors themselves. that would be much more rdinary than what we have here which is simple application of normal state ballot access principles singly are only g to put on the ballot of individual who is qualified to >> can ask you a que saying the de facto officer doctrine, if we t that going forward rather than judnghe validity of an act committeden the time when a president allegedly engages in up insurrection and thident leaves office, during the inter period what e for officers to disobey orders of the president in question? . murray: i am not sure ything gives military officers the right to adjudicate the legality of the presidency. >> why not?

you say he is disqualified from the moment happens to mark understand the de facto officer doctrine might be used to pr people from seeking judicial remedies for decisionse he was disqualified. his disqualified from that moment, why would anybody help to obey the direction from him? mr. murray: tas to be some kind of procedure in place to adjudicate the disqualification, each a sitting president, th is the only remedy i am aware of that fits for the removal or otherwise and again the authority of a sitting president. >> the section three speaks out disqli he is with disqualified from holding office. from the moment itns. it operates you say, there is no legislation necessary, i thought

that was a whole theory of your case? no procedure happens aucally? mr. murray: we need a procedure in order to have any remedy to enforce the disqualification. >> but as a separate question, the de facto conference. he is disqualirom the moment, self eng, done, i would think that a person who prevents the former president, would be free to as he or she wishes without regarhe individual? mr. murray: i think again -- >> why? >> that does no work because the defeofficers to ratify the conduct is done afterwards and it is from judicial review. but that aside, i would not say it again, i will putside. there ask a different question. difficult one for you i tand, but it deserves an

answer. thwould anything compel a lower official to oy an order from the former president? mr. murray: i am example a president was elected and they were 25 and they were ineligible. >> i'm talking about section three, please do not change the hypothet i like doing it too but do not do it. mr. murray: he is disqualified t he created an insurrection, with the report he did, that happens. it happened. what would compel and i will not say it agai to answer the question, ifo not have a as we will move on, will compe■il an individua to obey? mr. murray: we have st and rules requiring chains of command, the person ihe office and if they do not have

the only way to get someone oute is impeachf1ntof the presidency if you interpreted s three in light of other provisions in the constitution impeachment, they hold office, impeachment is the only way to validate that they do not have the ability to hold that office and should be removed. >> can i jussomething, justice t uniformity. permitted to enforce sectionre three in preial elections and i guess i did not really understand your argument or your response to her about that? mr. murray: if congress is concerned about uniformity they can provide for legislation and they can preempt state legislation. >> it is not necessary. federal enforcement legislation in questions comin up in the same with other federal questions come up to this court which is tte adjudicates

them and provides a sufficient ocess to come forward with due process and an opportunity heard and make those challenges. we have a full evidentiary record and an opportunity to . >>co resolve it to have a uniform ruling, my question is why the framers would have gned a system that would or could result in and around his uniformity in this way? we have election pending at yo not on the basis of this kind of thing? mr. murray: what the concerned most was assuring the insurrectionists and rebels do not hold off once one understands the imperative that they had ensure that both breakers not take office, it would be a little b -- oath records could not take office, only the federal ment can enforce it and it could rip the heart

out of section threesimple majority by failing to pass enforcement legislation. fact that states have the ability to enforce it as well, provides an additional layer of safeguards around what is section three. >> i'll ask you about the history when i get a chance >>ce ato? justice alito: let us say there is a country that ims that the united states is its biggest enemy and a suppose that the president of the united forlomatic reasons thanks it is in the best interest of the unit states to proviuwde funds o release funds so that they can beby that -- by that co could a state determine that that person has given aid and comfort to the enemy and, therefore, keep that person off the ballot? mr. murray: no, your honor.

this court has nevmfnguage, which also is present in the treason clause, but commentators have sed -- it is been rarely applied because treason prosecutions are so rare, but commentators have suggested that, first of all, that aid and mfort really only applies in at least an adversarialed war or relationship where is, in fact, a war between two countries. and, second, the intent standard would do a lot of work there because, under section iii, whatever the underlying co is, engaging in insu or aid and comfort, has to be done with tent to further the unlawful purpose of the instruction or to aid the enemieheir pursuit of war against the united states. justice alet me come back to the question of what we do if we were -- if different question of whether former president trump is an insurrectionist using a different record, different rulings on the admissibility of evidence, perhaps different standards of proof.

then what would we do? mr. murray: ultimately, this court would -- firstl, if there were deficiencies refuse to hear the case or itr could decide on the of deficiencies of the record. justice alito: well, would we have to decide what is the appropriate rule of evidence that should be applied in this --is case? would we have to decide what is propriate standard of proof? would we give any deference toat elected?some of whom may be would we have to have our own trial? mr. murray: no, your honor. this cakes the evidentiary record as -- as it is given. and, here, we have an evidentiary record that e parties agree is sufficient for a decision in this case. and then, as -- as i discussed earlier, there's a possibility of a bose corp. independent review of the facts, but, ultimately, what we have here is anrection that was incited in plain sight for all to see.justice alito: yeah, bute really not answering my question. it is not helpful if you don't do that. we have -- suppohave two

bodies of evidence, twodifferent different rulings on questions of admissibility, two different standards of proof, two differts of fact findings by two different judges or maybe multiple judges in multiple . mr. murray: well, first, this court would set the legal standard, and then it would decide which view record was correct, i think, under that -- if this court had two cases -- justice alito: view of -- which view of what record? mr. : if this court -- had cords before and it had the unity to present its case, and buddy agreed it was sufficient, this court would have to look at the

particularly if the court relies on the facts, disputable facts ofpresident trump said on video and in his twitter feedh is really th justice alito: well, you had an just take -- let's just take that example -- an e testify about the meaning of what president said.ça but do ydo you think it is possible that a different state court would apply daubert differently and say that this person should not beed to express an expert opinion on that question? do you think that is beyond tho? mr. murray: not -- not at all, your honor. two points on that. number oneident trump didn't appeal the admission ofmd point is that professor simi ly -- he didn't opine on the meaning of president trumps words. he opined on the effect that those words had lent extremists, and the essence of hiimony was built around videotaped statements of president trmself encouraging, inciting,nd

praising political violence when -- justice alito: well, i -- i'm not taking a position one way the other about whether the pert's testimony should have that or the meaning of president trump's words.[( i'm rying to get you to grapple with what some people have seen as the consequences of the argument that you are advancing, which is that there wi be conflicts in decisions among the states, that different states will disqualify different candidates, but i -- i'm not getting a whole lot of help from you about how this would not be an unmaneable situation. mr. murray: if this court writes an opinion affirming on the basis of the indisputable facts of what president trump n leading up to it and his virtual confession on twitter the fact, then it would be reversible error for any other state to conclude otherwise on that queof federal law, or -- or, at the very least, this could address that when those issues come up, but it seems unli justice roberts: justice sotomayor?

just to the other side's position. the first is that it is not self-exe. i want to put that aside. deh if we were to hold that states don't have the right eorce or create a cause of action in this situation. they want the flip to say that'o it because they need implng legislation. address that argument. justice sotomayor: because assume we rule that don't have it. what would you have us say for the other side of the argument? ony colleagues says you need or what -- what not -- no then chief justice but circuit court justice chase said ishaso implementing legislation, like the 18act.

you sesay that is not true because they could decide not to seek- see the candidate, et cetera. so i don't hat legislation's necessy. mr. murray: and, certainly, the historical examples of member -- members of congress under their article -- under congress's article i power to judge the qualifns of its members, of members of congress refusing to seat ineligible have won election.ection iii who in the context of the presidency, i think it would create ar of really difficult issues if the court says there's no procedure for determining president trump' eligibility until after the and then whahas uary 6th, when they count the electoral vote we are not going to count electoral votes cast for president trump because he's lified under section iii under the electoral count reform act. a number of the amicus briefs,

ch as those of professor ginsburg, hassan, and have made the point that that is kind of a disenfranchisement constitutional crisis in the i reason to address those issues now in aial process on a full evidentiary record so that everybody can have certainty on those issues before they go to polls. chief justice roberts: justice kagan? justice kagan: mr. murray, you talked -- you relied on the states' extensive powers under the electors clause. you talked abouttates having a rolnacting, you know, tyballot access sovisions. limits on that. and i will just give you rson versus celebrezze as an example of that, where we anoff a ballot, and that was a case about minor party candidatt the reason was that one state's decision to take a candidate off the ballot affects everybody else's rights. and we talked about the

pervasive national interest in the selection of candidates for national office. we talked about how an own borders. so, if that goes for minor cal party candidates, why situation in this case?ihe mr. murray: well, certainly, constitutional principles like section iii apply to everybody, but in celebrezz issue there was a first amendment question. and, certathere's no doubt that states' exercise ofhetrby t principles. and -- and in -- in that case, the -- the state law des for when a minor party candidate got on the ballot just came too soon to be reactive to what major parties had done and, therefisked disillusioned with who the major first amendment proble it raised ms. here, there's no real first amendment problem and -- and a state is just trying to enforce an existing ication that is baked into our constitutional

fabric. di come up in the first amendment, but there's a broader princi there and it is a broader over certain things in ourwer federal system, and, you know, wiur federal system, states have great power over many different areas. but that there'some broader principle about that there are certain national questions that -- that -- that -- that, you know, states -- where states are and i took a lot -- first amendment, not first ant -- a lot of anderson's reasoning is really about that. like, what's a state doing deciding who gets to -- who -- othezens get to vote for for president? mr. murray: colorado is not ciding who other states get to vote for for president. it is deciding how to assign its own electors und article ii power. and the constitution grants them ct of that is obvious, yes? mr. murray: no, your honor, because different states can ifferent procedure

surrectionists to be on the ballot. they m we are not looking past the papers; we are not going to look into fed constitutional questions. it is the sort of -- even in this election cycle, there are -- there adidates who are though they are not natural-born citizens and off the in other states. and that is just a function of states' power to enforce -- to ve their own electors and avoid disenfranchisement of their own citizens. justice kagan: thank you. chief justice roberts: justice gorsuch? justice gorsuch: you haven't had a chance to talk about the officer point, and i just want to give you an opportunity to do that. mr. mitchellak the argument that particularly in the commissions clause, for example, all officers are to be issioned by the president, seems to be all-encompassi that language. and i'm curious to your response to that. and along the i -- i -- i poked le bit at the difference between "office" and "officer" in the earlier discussion, you may recall, but

i -- i think one point y would make is, well, that isde just how the constituses those terms. so, for example, we know that the prespro tem of the senate and the speaker o house are officers of the united states because the constitut says they are, but we also know that they don'ld an office under the united states because of the incompati clause that says they can't. so maybe tstitution to us today, to a lay reader, might look ae odd in distinguishing between "office" anicer," not prepositions, works. a distinction. thoughts? mr. murray: well, i'd start with the idea that the meaning of "officer" in780s was the same m that it has today, which is a person who holds an contexts like the commissions clause, it appears tat is referring -- you know, that that is referring to a narrower class

of officers because we know that there are -- justice gorsuch: except it says "all." mr. murray: well, we know that there are classes of officers, like the president pro tem, who don't justice gorsuch: well, that is because the constitution elsewhere says that. mr. murray: we know that the appointments clause refers to a class of officers who get their appointment from the constitutionf -- justicuch: mm-hmm. mr. murray: -- rather than from presidential appointment. people who get their commi from the president himself are not commissioned by the president. and so, if you read the intments clause in line with the commissions clause, then commissions clause is really talking about esident's power.sst is the president who grants it. but i think it is important to particular because that wasi in years -- -- years -- justice gorsuch: but, before -- weeto te

distinction between "office" and "officer," do you -- do you agree that the constitution does make that distinction, particularly with respect makes that distinction, but the -- at least in secti, an officer of the united states is a person who swears an od holds an office. now the prespro tem and the speaker of the house, they don't swear a tutional oath in that capacity. they swear a constitl oath if they are a senator or representative in co in that separate non-official capacity but i think that narrow -- justice gorsuch: you agree they are officers who don't hold an office? mr. murray: they are officers who -- who may hold an off but don't swear an oath under article vi in that official capacity. justice gorsuch: well, how can they hold an office under the it says they can't.use? is a fair point, a i thin ion to the general rule, and one might consider them peofficers of the house and senate becausee bodies. justice gorsuch: well, no, the constitution says they are offif the united states -- so -- so there are some instances when you have an officer but not an office? mr. murray: those may be an exceptional circumstance. e gorsuch: okay. okay. mr. murray: but i would -- 111 justice gorsuch: thank you. mr. murray: you are welcome. chief justice roberts: justi■3■b justice kavanaugh: the concerns of sestions have been the states having such power over a

nationice, other questions about dit states having different standards of proof, an seem underscored by this case, at least the justice samour sa've been involved" -- "i've been involved in the j system for years now, and what took place here doesn'resemble anything i've seen in a courtroom" in this litigation fell woefully short of what due proces demands." now i don't know whether i agree or not. i'm not goinake a position on that, but the -- the fact that someone's complaininabout the bottom-line conclusion but about the very processes that were usedn e state would seem to nd that that would be permitted, seems to underscore the conchat have been just wanted e you a chance to address that because that was powerful langu agot disagreeing about the

conclusion but about the very fairness of the process. murray: yes, your honor, but that language was, with re correct.ce samour, just not president trump had a five-day trial in this case. he had the oppty to call any witnesses that he wanted. he had the opportunity to cross-exour witnesses. he had the opportunity to testify if he wanted to testify. and, of course, the process was dited because ballot access decisions are always on a fast schedule. but, in this whole case, from the trial court all the way up to this court, president trump has never fied a single process, other than expert depos, that he wanted to have that he didn't get. had the opportunity for fact witness depositions. he had the opportunity to call witnesses re. he didn't use his time at trial. there was ample process here, and this is how ballot access determinations in election cases are decided all the time. justice kavanaugh: okay. second question, some of the rhetoric of your pos don't think it is your position, but some of the rhetoryour

position seems to suggest, unless the states can do this, no one can prevent surrectionists from holding federal office. but, obviously, congas enacted statutes, including one still in effect. section iii 23of title prohibits insuon. statute. and if you are convicted of that, you are -- it says, "shall be disqualified" from holding any . so there is a federal statute on the books, but charged with that.s not been so what -- what are we to make of that? mr. murray: two things, your section iii 2383 was initially enacted about six years before n iii. it wasn't meant as implementing legislation relateection iii. the ti tdehadmphasize that by already received a criminal pardon. justice kavanaugh: i guess thea- justice kavanaugh: -- a little bit different, which is, if the concu have, which i understand, is that insurrectionists should able to hold federal office, there is a tool to ensure th does not happen, namely, federal prosecution of insurrectionists.

and if convicted, congade clear you are automacall@?■eiy barred from 114 holding a l office. that tool exists, you agree, and could be used but has not -- could d against someone who committed insurrection.■ñ you agree with that? mr. murray: that is absolutely but i would just make the point that the framers of section iii clearly understood that criminal prosecutions weren't sufficient because oftentimes insurrectionists go unpunished, as w case in the civil war, and that the least we can do is impose a civil disqualificaenalty so that even if we don't have the stomach to throw someone in jail -- justice kava well, they had the quo warranto provision that was in effect then from -- 18 until 1948, but then, obviously, that dropped out and hasn'been seen as necessary since then. last question. ing to figure out what section iii means and kind of to the extent it is elusive language or think about democracy, think

about the right of the people to elect candidattheir choice, of letting the people decide? because your position has the eff disenfranchising voters to a significant degree and should that be setng -- does that come in when we think about should we read section iii this way or readat way? principle, if you agree, of democracy? mr. murray: i'd like to make three on that, justice kavanaugh. the first t constitutional sads are for the purpose of safeguarding our democracy t just for the next election cycle but for generation come. and, second, sections designed to protect our democracy invery way. the framers of section iii knew fromul experience that who had violently broken their oaths to the constitut power again because they could dismantle our constitutional democracy from within, and so they created a democratic safety

president trump can go ask congress to give him amnesty by a two- vote. but, unless he does that, our titution protects us from insurrectionists. and, third, this case illustrates the danger o refusing to apply section iii as written because the reason we are here is 80 million amerano voted against him. and the constitution doesn't require that he be given another justice kavanaugh: thank you. chief justice robeustice barrett? justice barrett: so the general rule is that, absent rare federal courts share courts and authorities. state courts hthority to enforce the constitution, but there rtain limits to which the constitution itself resolve constitutionalbility to questions. and, you know, tarble' is one. and you said earlier that once a president is elected, you accepted that a couldn't do anything about that, like you couldn't -- colorado couldn't enact its own o warranto provision en use it to get the secretary of state or the

presidennyone else out of office. assume that is because of this principle of structural preemption. am i right? mr. murray: yes, your ho so i just want to clarify what that means for your ar. that means that your eggs are%y really in the of the electors clause, really in the article i baskcause you are saying that even though all of the questions that people have beeng have suggested that there's a proble authority to render a decision that would have ant on a national election, but you are saying that those structural concerns, which might otherwise lead to the kind of result that you would accept after someone is ice, are overcome by the electors clause?so. states run presidential election that is very clear from article ii. once states have selected the electors and the electors have voted, states have no more power ov candidate who has been them nominated for president. til then, the states do have the power to adjudicate those issues.

justice barrett: thank you. chief justice roberts: justice jackson? justice jackson: so when i asked you eaieout the uniformity concern and the troubling potential formity of having different states enforce n iii with respect to presidential elections, you seemed to point to history in a certain way. you said, i think, that the framers actually envisioned states enforcing section iii, at least in srcumstances where there were insurgents and confes.=■■ewf -- and i guess in my view of the history, i'm wondering, rewhether presidential elections were such a circumstance, that the framers actually envisioned stat enforcing section iii with respect to presidential ections as opposed to senatorial elections, esentatives, the sort of more local concerns. so can you speak targument that really section iii was about prevenhe south from

rising again in the context of these sort of local elections as opposed toing on the presidency? murray: well, two points on that, justice jackson. rst is that, as i discussed history of states regulatinge ballot access at tme. so ballot rules to restrict presidential candidates wouldn't have -- wouldn't have existed. they wouldn't have been raised one way or ather. justice jackson: right, but -- mr. murray: so -- justice jackson: -- i'm not making a -- mr. murray: but -- justice jackson: -- distinction between access and -- mr. murray: well -- justice jackson: -- anythi else. yeah. mr. : understood. justice jackson: yeah. mr. murray: but the more point i want to make is what is vear from the history is -- is that the framers were erned about charismatic rebels who might rise through states. justice jackson: but the didn't they put the word enumerated list in section iii? the thing that really is troubling to me is i totally understand your argument, but were barred and president is not

there. and so i guess that just makes me that maybe they weren't focusing on the president and, example, the fact that president are there suggestsnd that really what they thought was if we are worried about the charismarson, we are going and, therefore, that person is neing to rise? mr. murray: this came up in the debates in cs over section iii where reverdy johnson said why haven't cluded president and vice president in the language? and senator moore responds: we have. look at the language, "any office the united states." justice jackson: yes. esn't that at least suggest ambiguity? this sort of ties into justice kavanaugh's point. in other, we had a person■ right there at the time saying language here doesn't seem to include president,s that? and so if there's an ambiguity, why would we construe it to --

as justice kavanaugh pointed out -- against democracy?zú mr. murray: well, reverdy johnson came back and agreed with that re "any office" is clear, the constitution says abmes -- 20 times that the pncy in office -- justice jacko, i'm not going to that. so ljust say so your point is that there's no ambiguity with -- with having a list and not having "president" in it, with having a history that suggests that they were focu on local concerns in the south, with this conversahere the legislators actually discussed what looked like an amy, you are saying there is no ambiguity in section iii? mr. murray: let me take the point spifically about electors and senators, if i might, because i think that -- e jackson: yes. mr. murray: -- is important. presidential electors were not re and this decision -- justice jackson: no, i'm talking about the barred office part of this. right? mr. murray: exactly. so the barreoffice is, if you want to include everybody, first, you have cify ential electors because they are not offices. so they wouldn't fall under any fice. second of all, senators

office either.s don't hold the constu and refers to them as holding seats, notes. and want to make sure that there is no doubt that senators and representatives are covered, given te constitution suggests otherwise, you have to include them. the constitution says the presidency holds an office, as do members of this court. and so other high offices, the president, vicident, members of this court -- e jackson: all right. let me ask you -- i appreciate that arg can't enforce this provision for whatever reason in this context, in the presidential context, what happens next in this case? i mean, is it done? mr. murray: if this court concludes that colorado did not have the authority to exclude esidential ballot on procedural grounds, i -- i think this case would be done, but i think it could come back with a vengeance because ultimately members of congress would -- may have to make the

determination after a presid election if president trump wins about whet not he is disqualified from office and whether to count votes cast for under the electoral count reform act. so president trump himrges this court in the first few pages of his brief to resolve the issues on thts, and we think that the court should do so as well. ice jackson: and there is no federal litigation, you would sa mr. murray: well, that is correct, because there is no federal procedure for deciding e issues, short of a criminal prosecution. justice jackson: thankou chief justice roberts: thank you, counsel.■z anderson -- no it is ms. stevenson, i'm ms. stevenr. chief justice and may it please the court: exercising its far-reaching powers under the eles colorado's legislature specifically directed colorado' courts to resolve any challenges to the listing of any candid

on the presidential primary ballot before coloradans c ei despite this law, petitioner contends tlorado must put him on the ballot because of the possibilere would be a super majority act of congress to remove his legal disability. unde theory, colorado and every other state would have t dulge this possibility, not just for the primary but t the general election and up to the moment that an ineligible candidate was swtoff6oe.hi this case was handled capably and efficiently by the colorado courts undrocess that we have used to decide ballot ches for more than a century. and as everyone agrees, the t now has the record that it needs to resolve these impor issues. i welcome your questions. justice thomas: is there an express pr to -- that defines what a qualcandidate is? ms. stevenson: no, your honor.

provision.t an express when the colorado supreme court looked at this, ooked at the need to be qualified, plus the fact that the -- this part was -- justice thomas: so what does it say then, if it is not express? how do we get to this issue of qualifieidate? msenso what the court -- the colorado supreme court did -- and let me, if i could have a make the argumenth, i do want to shouldn't review the court's 125 statutory interpretation. -- shouldn't review the court's statutory interpretation. justice thomas: no, i'm looking at the statute. ms. stevenson: right. what the court did was to say that we have three important provisions in this section tha show that candidates have to be first, it requires that under 12032(a) that a political that wants to participate has to have a qualiandidate. alsloedri justice thomas: i know, but this isn't a write-didate. so we are actually talking about the participation of a political party, right? we are not talking about the participof a candidate? ms. stevenson: sure. i think that the fact that the write-in candidate also had to

ualified was confirmatory of the fact that the politi qualified, and it would beo be otherwise incongruouead those things differently.e thoms section iii a qualification? ms. stevenson: under the reasoning of the 126 colorado supreme court -- justicthomas■+: noju■w■j on the . stevenson: a -- a candidate must have, meet all the cr and i don't perceive any distinction between being -- methe -- justice thomas: okay. ms. stevenson: -- eligibility cr and not being disqualified. there' just don't see any meaningful difference between ose two things. justice thomas: thank you. chief e roberts: you -- you represent the secretary of state, right? ms. stenson: that is correct, your honor. chief juice roberts: if you are the secretary of state mewhere and someone comes in and says i think this candidate should be disqualified, what -- what do you do next? ms. stevenson: administratively, and what the deputy elections director testified to at the objective -- objective knownformation, the secretary can act on that and inform the candidate -- chief justice roberts: so the secretary at first decides whether that is objective, knowable information?

ms. stevenson: in some in this case, the challenge was actually brought befor candidate's paperwork had even been submitted, and becaus there had already been a challenge asserted- and put into the proper court procedure, the secretary didt even make that determination because she d't have the paperwork. chief justice roberts: well, what -- in another case where that wasn't the procedure that was fi ms. stevenson: sure. chief justice roberts: -- somebody comes in, maybe 've got a stack of papers saying here's why i think thisn is guilty of insurrection, it is a big insurrection, something that, you know, happened down -- down the street, but they say this is still an insurrection, 't know what the standard is for when it arises to . ms. stevenson: i think anything that even presented that level of controversy about one person having a set of facts that they said prove would send this case to the 1-13 procedure that we use to resolve ballot challenge like that. and if -- if another elector or the individual wught the information didn't want to bring it, cretary herself could bring that action. chief justice roberts: is there a provision for judicial review

of secretary of state's a■tnd s what you know about other states? ms. stevenson: well, cly in colorado, if -- any action that the secretary takes tha anyone wants to challenge, they can use the 11ess to do so. i think states have varyin degrees of that. there are nly other states that allow versions of that, and then i don'know whether there are others that don't. i certainly know that there are that do. justice alito: i think we ia review of a secretary of state's determination. is that incorrect? ms. stevenson: no, no. i think that is right, and i think there are sotes that actually have no mechanism, to o, i think, justiceat tt don't y mechanism to exclude a disqualified candidate from the ballot at all.

do want to 129 speak to that for just a minute aboutt that be constitutional? if the secretary of state's determination was final? ms. stevenson: i think so, under article ii, the electors clause, your honor, thatbe would be constitutional. states get verd authority to determineowo run their presidential elections. justice alito: could a s enact a statute that provides different rules of evidenc different rules of procedure and different standards of proof for this type of proceeding than for other civil proceedings? ms. stevenson: yes, your honor, i believe it could under the same electors clause power. justice sotomayor: that issue would be determined under perhaps a different constitutional prosion like ms. stevenson: correct. e bounds of the electors clause are other constit■xional aint which would include due process, equal protection, first amendment. justice barrett: what's the due process right? does the candidate have what's the liberty interest? ms. stevenson: i think it is not very precisely defined in the case law, but i think there is a

recognition that there is a liberty interest of a candid and there is some due process interests in being able to access the ballot. justice barrett: i thought that was -- i thougt was for voters. you -- you think for t candidate too, that there's -- that it be taking something away from the candidate? ms. stevenson: certainly, yes. anink a ofen context where candidates can have an issue about being on the ballot, but it is sort of a hybrid or tentimes first amendment, fourteenth amendment, qualifications clause, all discussed together. justice barrett: let me ask you follow-up to justice alito. you know, these decisions might ade different ways in maybe a secretary of state makes it in one state wiy little ms. stevenson: i think this court has tremendous discr to decide its standard of review, and it me based on the proces was employed by an individual state.

i think you could exerci independent review of bose corp. that mray talked about, or you could give deference where you have a full-blown proceeding like the one here that had all the protections of rules of evidence and cross-examination and things like that. f jue you think we should give deference in reviewi factual record, the legal conclusions? in other words, we shouldn't undertake a de novo review? ms. stevenson: i don't think the review sho de novo. i am amenable suggestion that the court would do the bose corp. typeendent review that might provide greater certainty to states around the country as to what the co's position is on the factual record in this case. chief justice roberts: of course, if it were not de novo view, we could reach dispate r ms. stevenson: i -- i think that is 132 possible. justice kagan: i take it your position is athis disqualification is really the same as any other disqualification, age or residence or what have you. . stevenson: that is correct. justice kagan: and -- annd that and say, well, thisack on disqualification, number one, it the fourteenth amendment,