rule narrowly not be seen overly partisan in a highly charged election dispute. unlikely they will decide if he engaged in insurrection but the final thing before we dip into court. the justices are expected to decide quickly. super tuesday is when colorado votes. >> bill: david spunt watching the action there. we'll be back with you momentarily. >> dana: in just moments we'll be getting a rare look at america's justice system in action. the u.s. supreme court is about to hear a landmark election case attempting to remove former president trump from the primary ballot in colorado. welcome to a new hour of "america's newsroom," i'm dana perino. good morning. >> bill: here we go, right. the first of its kind hearing in the high court forcing the justices to confront questions about trump's alleged involvement in the capitol riot. it will be consequential. today's arguments will either

reinforce or dismantle the colorado supreme court's order excluding the former president from the ballot in that state. effectively punishing trump for a crime which he has neither been criminally charged for convicted. >> dana: as soon as it begins we'll listen to it live. until then our fox team coverage continues. we have andy mccarthy, jonathan turley, and kerri and joining us is karl rove and andrew. one of the things i wanted to start with you on, andrew, set the stage about how unprecedented this is and what this moment could actually mean. >> i think it's very interesting to think about today through the lens of donald trump. the justices are thinking about what this ruling does for decades or even hundreds of years to come. this is a precedent we've never had before. what happens when states challenge candidates for presidential office? this is not just a donald trump issue. this is every single election that will come from here on out. i don't think that the justices

are going to be very tolerant of states having an individual discretion in applying clause three of the 14th amendment. >> bill: we may get into this at any moment. we're waiting for shannon bream inside the courtroom to tell us when this case begins. there is a little bit of work the justices need to do before they start opening arguments. and when the arguments begin, the audio line will be open and at that point we can join. we'll try to give everybody a bite at the apple. karl, let's begin with you now. what are you listening for today, karl? >> i think there are a couple of big points here. first of all, does this apply, does section three apply to the president of the united states? it mentions members of the senate and congress but not the president. seeing who is inquiring about that. what is an insurrection? the last law on the american books, statute books was removed in 1948. so exactly what is an insurrection? due process.

is donald trump guilty -- found guilty in a trial? was he impeached? can this be applied to him without some due process? does this only apply to the civil war? there is some suggestion 14th amendment only does. i think it is problematic but one of the arguments made by the plaintiffs in this case that it doesn't apply. then finally does it apply to a party? remember, this has to do with the republican party of colorado putting trump on the ballot in their primary. this is a side issue. i don't think the court will want to visit this issue twice. if they say the party has a right to do it on the ballot we would have another case filed in july saying does he have the right to be on the general election ballot as opposed to the party ballot? i will listen carefully. is there a sense the court will try to have a narrow decision that can have a great many

people joining it on the court, 7-two, 8-one, 9-0 or have a more expansive view that might start losing some members? >> dana: they'll read one, maybe two minor decisions that have nothing to do with this one. we'll hold on for a few moments before the audio line is open. andy mccarthy, tell us about what this controversy is really about? instead of the big picture precedent setting that it could be, for president trump himself what does it mean? >> well, it's obviously his future of his candidacy. if he is struck from the ballot, that's not only chaos for the country, it is curtains for him. and obviously he has a lot on his dance card as far as legal proceedings are concerned but we're all under the assumption that those legal proceedings are about going to his fitness as a candidate. here what we're talking about is the very survival of his candidacy whether he can be on

the ballot or not and why i think we talked a lot about the court wants to have a small footprint but as karl just mentioned they need to rule in this in a robust enough way there isn't another bite of the apple a few months from now. >> bill: which is entirely possible. professor turley. if you think back to november and december of 2000. we went 37 days bush versus gore. karl, you had a front row to that when the court said wow, we're doing something right now that we've never been involved in before. and in order to open up some measure of transparency they arowed us to listen to audio argument and done it several times since then. this is a day they've chosen to do that. you believe that this court does not want to go back to the bush versus gore days. can it help itself when you think about what andy just mentioned, you've got the immunity case still hanging out

there as well. this might be the first time we're doing this but it won't be the last time this election year. >> yeah, i think that even for those of us who have covered bush versus gore this brings back memories, not good one. that was a very traumatic period. you can imagine what it was like for the justices. it created deep divisions not just in society but on the court itself. ruth bader ginsberg left off the word respectfully. they usually say that. she just said i dissent. it captured the damage done to the court. i i think it's fair to say the justices not only do not relish getting a case like this, i think they honestly loath it. they don't want to put the court in a position of picking the president. the person who is most disinclined that play that role is chief justice john roberts.

the ultimate institutionalist. so in terms of keeping a small footprint, he is the one who will be measuring the shoe and trying as hard as he can to eke out a unanimous vote. he once said that quote, the most successful chief justices help their colleagues speak with one voice. well, this is his moment. it's the court's moment and his moment to see if they can speak with one voice. >> dana: we understand justice sotomayor is reading another minor opinion. these could start any moments. let me go to you, kerri. jonathan mitchell is president trump's lawyer. the only one who has argued in front of his court. >> his sixth time arguing. interesting to see his comfort level in contrast to the other attorneys arguing. he clerked for justice scalia. he had a website devoted to him

called the scalia shrine. he has written a lot of scholarly articles. murphy, clerked for both justice kagan and gorsuch and murray wrote an op yet in 2017 are you in for the confirmation of justice gorsuch? both of his bosses could not be more different politically they're both driven by the law and not partisan politics. interesting to see his interactions with those justices today. >> bill: this is a verbal machine gun. the lawyers start and start to make their case and they get redirected by any one of the justices. >> absolutely. so i do think that one who has argued before the supreme court before there is a certain level of comfort that has been developed. all three attorneys know the stakes are so high and i'm sure they're all nervous. >> dana: one of the things democrats counted on is all these lawsuits charges against president trump would change republicans' mind and turn republicans against him.

that hasn't been the case. david axelrod has said this is not the way to go to try to kick him off the ballot. how do you see the politics of it at this moment? >> i think david is right. this is not good for our country and it is not good for democrats because it looks like they are trying to short circuit the process. remember the colorado supreme court is seven members, all appointed by a democrat. all of them democrats. the most liberal member of the court wrote the stinging dissent in what turned out to be a 4-three opinion to kick trump off. when you have that kind of dissent among people on the center left of the judicial line, it's problematic to think that somehow or another this will be good for the country if they kicked him off. there was dissent even on the left on this. absolutely i think david is right. this is not good for america to remove the former president from

the ballot. and not good frankly for democrats because it looks like they are trying to short circuit the process. >> bill: just so the audience is aware going back to 1868. the 14th amount, section three as it reads quote. no person -- i apologize. we're now told that the audio portion is now being fed out so let's pause on the 14th amendment, section three and take you inside the u.s. supreme court for today's arguments. okay. so when we patch this in, you will hear what our team is hearing from inside the court and we'll hear the lawyers begin their opening statements. as i was reading there here is how section three reads out. no person shall be a senator or

representative in congress or elected president or vice president who had previously take than an oath shall have engaged in insurrection or given aid or comfort to the enemies there of. that's what's before them today. and as we go inside the court, i do believe we've got that sound. let's go. >> disqualified from serving as president under section three because congress with lift that disability after the candidate is elected but before he takes office. a state cannot exclude any candidate for federal office from the ballot on account of section three and any state that does so is violating the holding of term limits by altering the constitution's qualifications for federal office. the colorado supreme court's decision is no different from a state residency law that requires members of congress to inhabit the state prior to election day when the constitution requires only that

members of congress inhabit the state they represent when elected. in both situations, a state is accelerating the deadline to meet a constitutionally imposed qualification. and is there by violating the holding of term limits. in this situation, a ruling from this court that affirms the decision below would not only violate term limits, but take away the votes of potentially tens of millions of americans. i welcome the court's questions. >> mr. mitchell, would you -- you didn't spend much time on your argument with respect to whether or not section three is self-executing so would you address that? and in doing that, your argument is that it's not self-executing but then in that case, what would the role of the state be, or is it entirely up to congress to implement the

disqualification in section three >> it is entirely up to congress, justice thomas. the argument goes beyond saying that. we need to say something more than that. a non-self-executing treaty or constitutional provision normally can still be enforced by a state if it chooses to enact legislation. the holding of griffin's case goes beyond that by saying a state is not allowed to implement or enforce section three of the 14th amendment unless and until congress enacts implementing legislation allowing it to do so. under griffin's case that is correctly decided the anderson litigants disagree. if this court were to adhere to that there won't be any role for the states enforcing congress three unless congress gives them that authority. >> counsel, what if somebody came into a state -- secretary of state's office and said i took the oath specified in

section three, i participated in an insurrection, and i want to be on the ballot. does the secretary of state have the authority in that situation to say no you are disqualified? >> no, the secretary of state could not do that consistent with term limits. even if the candidate is an admitted insurrectionist section three still allows the candidate to run for office and even win election to office and then see whether congress lifts that disability after the election. this happened frequently in the wake of the 14th amendment where confederate insurrectionists were elected to congress and sometimes they retained a waiver and some did not. each house would decide to seat them. they are the sole judge of the qualifications of its members. if the state banned an admit i had insurrectionist from the ballot it would be adding to and altering the constitution's qualification for office. section three the candidate need

qualify only the time he holds the office. the secretary of state would say they need to obtain a waiver. >> even though it's unlikely or difficult for an individual who says i am an insurrectionist and had taken the oath. that would require 2/three of votes in congress, right? that's a pretty unlikely scenario. >> no secretary of state is permitted to predict the likelihood of a waiver. in doing so they're adding a new -- the proper analogy is to state residency laws. the constitution says that a member of congress must inhabit the state that he represents when elected. and the lower courts have all held in reliance on term limits a state election official cannot move that deadline any earlier by requiring the candidate for congress to inhabit the state.

>> even if somebody comes in and says i'm a resident of the secretary of state's office in illinois i'm a resident of andened and have been all my life i want to run for office in illinois the secretary of state can't say no you can't? >> the question would be is that person going to inhabit the state when the election is held? so if the candidate makes clear, perhaps through a sworn declaration or his own statements he has no intention of relocating to that state before election day, then the secretary of state would be enforcing a constitutional qualification rather than enforcing a new state-imposed qualification. that's the key under term limits. is the state in any way altering the criteria for a federal office either for congress or for the presidency? in this situation the colorado supreme court is going slightly beyond what section three

requires because section three on its face bans an insurrectionist only from holding office. >> can i stop and back up. you admitted the concept of self-executing does generally permit states to provide a cause of action for breaches of a constitutional provision. >> correct. >> in fact, they do it frequently for taking clauses. here there is no debate that colorado has placed that -- provided that cause of action. you want to go a step further and say that this, like the treaty clause, requires implementing legislation to permit the state to disqualify an insurrectionist. >> that's correct. that's right. >> so history proves a lot to me and to my colleagues generally. there is a whole lot of examples of states relying on section

three to disqualify insurrectionists for state offices. and you are basically telling us that you want us to go two steps further, maybe three. you want us to say self-execution doesn't mean when it generally means. you want us now to say it means that congress must permit states or require states to stop insur she can unists from taking state office and so this is a -- it's rare under the 14th amendment. >> of course it's rare. this is a one-off situation. >> it is one-off, i don't disagree with you but not with respect to how we've defined self-executing. >> we aren't asking the court to redefine it. we were careful not to rely on that phrase >> you were because it's not. >> that's right. >> now the question is a very

different one in my mind. i understand what you are relying on griffin. let's just be very clear. griffin was not a precedent supreme court decision. >> that's cite >> it was a circuit court decision and writes in the davies case he assumed that jefferson davies would be ineligible to hold any office, particularly the presidency and treated -- this is his words, section three as executing itself needing no legislation on the part of congress to give it effect. so you are relying on a non-precedent case by a justice who later takes back what he said. >> the key point with griffin's case and important precedent. it is not a precedent of this court. it provided the back drop against which congress legislated the enforcement act

of 1870 when it provided an enforcement mechanism and did away with it later. >> that has nothing to say with respect to what section three means. can we get to the issue, which is i think one that i go back to that i started with and very briefly, what sense does it say that states can't enforce section three against their own officials? i think logically those are two separate issues in my mind. can states enforce the insurrection clause against their own office holders or can they enforce it against federal officials, or can they enforce it against the president? those are all three different questions in my mind. >> the answer to all three of those questions turns on whether this court agrees with the

holding griffins case. if that's the proper enunciation of the law a state cannot do any of the things your honor suggested unless congress gives it the authority to do so. >> a decision that relies on policy doesn't look at the language, doesn't look at the history, doesn't analyze anything than the disruption that such a suit would bring, you want us to credit as precedent. >> congress relied on griffin's case when it enacted the enforcement act of 1870. >> mr. mitchell if i may interrupt to clarify. this sounds like your reply brief. it sounds like you are not making a constitutional argument, you really making a statutory preemotion shun argument. is that what you're doing here? you are not saying that the constitution gives you this rule. it is the kind of combination of griffin's case plus the way

congress acted after griffin's case that gives you the rule. >> that's right. congress took up the invitation provided by griffin's case and established it in the 1870 enforcement act. later repealed them. the only legislation on the books is the insur oak shun criminal statute. in 1870 the repeal of the provisions of 1948, all those were made with griffin's case as the back drop. the understanding was these remedies would be exclusive of state court remedies. there is not an express statement of pre-- >> suppose that we took all of that away. suppose there were no griffins case and congressional enactment. what do you then think the rule would be? >> a much harder argument for us to make. normally every other provision

of the 14th amendment has been treated as self-executing. what we would argue in the hypothetical there are practical considerations unique to section three similar to what chief justice chase spelled out and goes to the policy concerns he talks about where this was a case griffin's case involved a kwon facted criminal on the ground the judge who tried his case was an insurrectionist and chief justice chase realizes if he enforces section three it would nullify every official act taken not only by this particular judge but anyone who was an insurrectionist under section three. >> why do you have need those concerns. why don't you have an argument that the constitution of its own force that section three of its own force preempts the state's

ability against federal officers like in another case way. >> another argument more limited. suggesting there may be a barrier under the constitution to a state legislating and enforcing section three specific to federal officers. we could rely on mccloning that says state courts lack -- >> why aren't you making those arguments. that only gets you out of state court. >> chief justice chase said in this opinion that provided the back drop for the congressional enforcement legislation that states had no role in enforcing section three unless congress was to give them that authority through a statute they passed. >> your arguments -- one last thing. i think your argument is broader than that. i think if we accept your position that disqualifying someone from the ballot is adding a qualification, your position is that congress can't

enact a statute that would allow colorado to do what it's donetsk. congress would be adding a qualification that it can't do. >> i don't agree with that. congress is not bound by the holding of term limits. it only prohibits the states from altering the constitution's qualifications for federal office. ist does -- if congress thor jiversed the states to ex clues insurrectionists from the ballot it would be valid enforcement. there has to be con grewens and proportionality. >> why would that be permissible? section three refers to the holding of office, not running for office. so if a state or congress were to go further and say that you can't run for the office, you can't compete in a primary, wouldn't that be adding an additional qualification for serving for president? you must have been free from

this disqualification at an earlier point in time than section three specifies. >> the answer to your question depends how you interrepresent the word enforce in section five. justice scalia thought enforcement you can do nothing more than enact legislation that mirrors the 14th amendment self-executing rarities. >> get into the question of whether it would be congruent and proportional. i take you to argue, i think this is right that the term self-executing is a misnomer as applied here. often when we have use the term what we are referring to is the proposition that a particular provision of the constitution were a statute in and of itself creates a private right of action. that's not the issue here. >> no, it's not. sometimes the phrase self-executing is used that that

way. self-executing treaties or not it is whether the treaty has any force. >> i don't see what is gained by using this term which is used in different context rather than directly addressing what's involved here which is the the question of who can enforce section three with respect to a presidential candidate? the consequences of what the colorado supreme court did, some people claim, would be quite severe. would it not permit -- would it not lead to the possibility that other states would say using their choice of law rules and their rules on collateral, that there is non-mute rail coll collateral estoppel against president trump and the colorado

supreme court could decide this for all other states. could it not lead to that consequence? >> i don't think so. i believe the effect of the decision would be determined by colorado law rather than the law of another state. i think your question gives rise to an even greater concern because if this decision does not have precluesive effect in other lawsuits it opens the possibility a different factual record could be developed in some of the litigation that occurs in other states and different factual findings could be entered by state trial judges. they may conclude president trump didn't have any intent or make a finding differs from what this trial judge court found. >> exactly. in this decision the trial court in colorado thought it was proper to admit the january 6th report and it also admitted the testimony of an expert who

testified about the meaning of certain words and phrases to people who communicate with and among extremists, right? another state court could reach an opposite conclusion on both of those? >> other states could conclude the january 6th report is inadmissible hearsay and statements within the report were hearsay even if the report itself were not and reach a different conclusions of the expert testimony. and maybe have time to produce our expert. >> should these considerations be dismissed as consequential argument or one that supports the position. >> they reinforce each other. we have an argument efficient to dispose of the case with the meaning of the officer of the united states and the argument we make based on term limits. all the considerations your honor has suggested are additional reasons to reverse

the colorado supreme court although we don't think it's necessary to get into consequences. the law is on our side. >> you keep saying term limits. there are other presidential qualifications in the constitution, age, citizenship, separate amendment, the 22ened amendment that doesn't permit anyone to run for a second term. a history of states disqualifying, not all, some of disqualifying candidates who won't be of age if elected. we have a history of at least one state disqualifying someone who wasn't a u.s. citizen. >> right. >> are your arguments limited to section three? >> not quite. whether the state is violating term limits by adding to or altering the qualifications for the presidency and constitution. >> so you want us to say -- i'm

wondering why the term limits qualification is important to you? are you setting up so if a president runs for a third term that a state can't disqualify him from the ballot? >> of course a state can. that's a qualification that is categorical. so a state is enforcing the constitution when it says you can't appear on our ballot if you've already served two terms as president. >> same if they're under age when elected and the same if they are not a u.s. citizen. >> well, the same if they are not a u.s. citizen for sure. the age is nuanced. you can imagine a person is 34 years old but turns 35 before inauguration. >> that would probably come up to us at some point. the state would make a decision and say he is ineligible and we would have to decide that question then. but my point is, so adding

qualifications to what term limit? is your argument based on? i'm confused. >> maybe i'll start with the age example. if a state like colorado says you can't appear on our presidential ballot unless you're 35 years old on the day of the election that would be a violation of term limits. there could be a 34-year-old on the day of the election who turns 35 before inauguration. what colorado supreme court has done in similar. under section three president trump needs to qualify during the time he holds office. the colorado supreme court is saying you have to show that you would qualify under section three now at the time of the election or at the time we the state supreme court. >> a point of clarification. when you say term limits. the decision in the term limits case, constitutional provision governing term limits. >> maybe i should call it thornton instead of term limits. >> does it have something to do

with the fact that the particular circumstance you are talking about can change? is that what you mean? i'm trying to understand the distinction between the provision in the constitution that relates to disqualification on the basis of insurrection behavior, and these other provisions that justice sotomayor points out. they all seem to me to be extent constitutional requirements. so -- but you are drawing a distinction. >> whether or not -- >> it is not categorical. congress can lift the disability by a 2/three vote. >> why does that change the initial determination of whether or not you fall into the category? i don't understand the fact that you can be excused from having been in the category, why does that make it a categorical

determination? >> we don't know whether president trump will be excused before he is sworn in if he wins the election on january 20th, 2025. a court saying president trump has to show now today he would qualify under section three is accelerating the deadline for him to obtain a waiver from congress. >> by virtue of the hold office, right? >> section three bans him only from holding office. >> now that i have the floor, can i ask you to address your first argument which is the officer point. sorry. >> could we -- is that okay if we do this and then go to that? will there be an opportunity to do officer stuff? >> absolutely. absolutely. [laughter] >> i just want to understand. on this theory, what is the sum total of ways that the -- that

section three can be enforced, that somebody out there can say yes, there has been a former president who engaged or led or participated in an insurrection and so should be disqualified from office putting aside the officer argument. what is the sum total of ways that enforcement can happen? >> the answer to that question will depend on what your honor thinks of griffin's case. if you affirmed the rationale of that it could be enforce evidence through congressional -- they -- >> is that your position? >> we believe griffins case is decided. >> how does that fit with a lot of the answers to the questions that we've been given you've said congress has to have the ability by a 2/three vote to lift the disqualification. >> right. >> i would think that that

provision would be in some tension with what you just said because if congress has the ability to lift the vote by a 2/three majority surely it can't be right that one house of congress can do the exact same thing by a simple majority. >> there certainly is tension and professors criticized it. >> then i must be right. >> we don't think the problem is fatal. to us the 2/three where congress through enforcement legislation creates a mechanism by which the insurrectionist issue is to be determined by some entity. could be the legislature. each house has the ability to judge the qualifications of their members or outside the situation of congress, it would be whatever congress enacts. when it was -- it federal

prosecutor had -- was able to seek an ouster from office but the amnesty provision. we acknowledge the tension but not an insur mountable obstacle. >> if you an all guys the lifting by congress of the disqualification by a 2/three vote to a pardon surely one would not argue the fact the thaw a president or governor can pardon someone from a criminal conviction or criminal offense means the person couldn't be prosecuted in the first place for the criminal offense. >> that's right. >> i don't see what the tension is. they are two separate things. did the person engage in this activity that is prohibited and even if the person engaged in the activity are there reasons why the disqualification should be lifted or pardon granted. >> again, if the court accepts the holding of griffin's case that's what we would have. >> there is a limit on what one

can infer from the mere fact that congress can lift the disqualification. you can't infer it is im permissible that the person engaged in the insur she can shun. you can't make that inference. >> the intention is you would have the exact same actor and the actor can lift the disqualification by a 2/three vote but you are saying only that actor can put the disqualification into effect in the first place and do that by far less than 2/three. just a simple majority of one house. >> or do nothing at all if the holding of griffin's case is correct. >> the only thing it takes to have no action is, you know, half plus one saying we don't feel like it. >> that's why we tried to characterize the argument the way we did. we rely apresent assumption documents as well.

>> don't you think it's real vanity to trying to figure out what the original public meaning of section three of the 14th amendment is by the chief justice of the united states a year after the 14th amendment. that seems to me highly probtive of what the meaning or understanding of that language is. >> i do think it. we didn't rely heavily on the point you are making because we have the other opinion in the jefferson davis case. that argument could boomerang on us and why we didn't push it hard. you are right. it is relevant and probative for sure but other evidence to trying -- >> let's move on to the officer point and justice jackson, i think you -- >> i had a question about it because you are making an

argument and as i look at section three, i see two parts of the first sentence of section three. the first is a list of offices that a disqualified person is barred from holding. the second are specific circumstances that give rise to disqualification. so first am i right about seeing that there are two different things happening in the first sentence. >> yes, for sure. >> are you arguing both in this case or just one? are you arguing both that the office of the presidency should not be considered one of the barred offices? and that a person who previously took the presidential oath is not subject to disqualification? >> we are arguing both. >> i don't see that in your brief. a lot of focus on the second but not in the first. >> there is more focus on the second and have a heavier lift on the first point. >> why? you have a list and president is not on it.

>> that is an argument in our favor. with respect to officer of the united states rick that's used repeatedly in the constitution and the commission's klaus and appointments clause and impeachment clause. every time it appears it is used in a way that clearly excludes the president. >> that's the second argument. the first is we have a list of offices that a person is barred from holding, right, under your theory or under the language and we see it begins with senator, representative, elector of president and vice president, and all other civil or military offices under the united states. the word president or vice president does not appear specifically in that list. >> that's right. >> i'm trying to understand are you giving up argument and if so, why? >> we're not giving it up at

all. the anderson litigants claim they are encompassed. >> do you agree that the framers would have put such a high and significant and important office smuggled it in through that catch-all phrase >> no, we don't agree at all and making the argument the presidency is excluded from the covered offices listed at the beginning. >> your brief says he didn't take a position on that point. and your brief said -- i don't have the cite, i apologize. you don't affirmatively argue that point is what your brief said. >> we certainly argued it in the reply brief. how we phrased it. we pointed out in the opening brief there are potential issues if this court were to rule on office under because that phrase appears in other parts of the constitution under the impeachment disqualification

clause. >> i thought the point was that section three was unique. there was something happening with section three that could explain why certain offices were left off or what not. >> perhaps. there are also implications in other parts of the constitution that help us on the officer of the united states argument in that second part of section three. some cut against us when it comes to office under the united states. the anderson litigants point this out in the read brief. if the court were to say the presidency is an excluded office under the united states it could imply the president is not covered by the im -- >> a lot hinges on the difference in your argument between the term office and officer. >> yes. >> i guess i'm wondering what theory do you have from an original understanding or texturalist perspective why those two terms would carry different weight?

>> it's clear from the constitutional text that there are officers who do not hold offices under the united states. for example, the speaker of the house and the president pro temp are described as officers in article one who were chosen by the legislature. they have to be officers if they are able to be covered by the presidential succession act. under the constitution only officers can serve when there is a vacancy in both the presidency and vice presidency. officers but not offices under the united states because of the incompatibility clause. if you are a member of congress you can't hold an office under the united states. that provision of the constitution demonstrates that members of congress can't hold offices. >> i appreciate that response. is there anything in the original drafting, history, discussion that you think illuminates why that distinction would carry such profound weight. >> these are textural inferences we're drawing and texturalist

analysis but not relying on the thought processes of the people who drafted the provincials. we're not sure they would be relevant in any event. this language in section three was enacted as a compromise. there were certainly radical republicans who wanted to go further if you look at the earlier drafts proposed. some people wanted to ban all insurrectionists from holding office. some people wanted to go further and ban them from voting. >> thank you, counsel. i just have one very technical question. the statute in 1870, if it were still in effect, would require you to modify your arguments slightly. it was repealed, as you say, in 1948. i tried to find it but i couldn't. do you know why it was repealed? >> we don't know why. looks like it was done as part of a reorganization of the u.s. code. it doesn't appear there was any policy motivation behind that decision. i think a lot of things got repealed during the 1948

decisions that were made. >> anything further? is there any history of states using section three as a way to bar federal office holders? >> not that i'm aware. because of griffin's case. it has been the law -- not the law, it was a circuit court decision, that is the settled understanding of section three since 1870 when it was decided. >> i want to pin down your principle argument on section three. you argue even though the president may or may not qualify -- presidency may or may not qualify as an office under the united states, your principal argument is the president is not an officer of the united states. >> a little more forceful plea than what you described. we believe the presidency is excluded from office under the united states but the argument we have that he is excluded, the president as an officer of the united states, is the stronger

of the two texturally and fewer implications. >> a jury mannedered rule -- >> i wouldn't call it gerrymandered. >> some scholars have been discussing it. under that reading only the petitioner is disqualified because virtually every other president except washington has taken an oath to support the constitution, correct? >> that's right. to our knowledge every other president. john adams might be excluded. he took the oath as a vice president not an officer. president biden would be covered. he took the oath as a member of congress and true of every previous president. >> would it be true if we were to hold more narrowly in a reversal that it's not section three that is at issue but thornton and others as to whether section three can be enforce evidence by states

against the president? >> that would extend to every presidential candidate. not just ours. >> if i could understand. given that you say you don't have a lot of evidence that the founding -- the generation that we're looking at is thinking about office versus officer of the united states. it would suggest that we should ask is that a rule sensible one? if they had thought about it what reason would they have given for that rule? it seems as though there is no particular reason and you can think of lots of reasons for the contrary to say that the only people who have engaged in insurrection who are not disqualified from office are presidents who have not held high office before. why would that rule exist? >> i don't think there is a good rationale given that this was compromise legislation. sometimes it happens with statutory compromises and constitutional compromises.

an agreed upon set of words to pass both houses of congress. different legislators may have had goals and motivations and in a compromise everybody goes away miserable and seems odd president trump would fall through the cracks in a sense. if officer of the united states means appointed officials, there is no way he can be covered under section three. the court have to reject the officer argument to get to that point. >> any better office if you go to the office argument that justice jackson was saying that as insurrectionist cannot hold all the officers in the united states but we're perfectly fine with that insurrectionist being president. >> that's a tougher argument for us to make as a policy matter. one would think of all offices the presidency would be the one you would want to keep out the commander-in-chief of the army insurrectionist. we're not conceding office under. but we definitely have the

stronger textural and structural case of officers of the united states. >> respond to some of the specific textural arguments officer of with the impeachment clause and some others. >> i'll start with the commission. >> the ball has been bouncing back and forth. >> three inferences drawn from those provisions. the commissions clause is the strongest. it says the president shall commission all the officers of the united states. shall is mandatory. all is all encompassing and the president doesn't commission himself and can't commission himself. that's one of the first problems. the anderson litigants are trying to say there is an implied exception because the president can't commission himself so we should construe it to mean all officers of the united states besides the president. you also have members of congress who are not commissioned by the president and that's because they are not officers of the united states. so the only sensible distinction

that we can see given the language of the commission's clause is officers of the united states are appointed officials and elected officials such as members of congress and the president and the vice president are not. and the impeachment clause reinforces that. the president, the vice president and all civil officers of the united states shall be removed from office upon impeachment for conviction of high scrims and misdemeanors. the president and vice president are listed separately from officers of the united states. the appointments clause we know the president is not appointed and neither is the vice president. neither are members of congress. so they can't be officers, either. >> how does article one section six fit into this discussion. officers being in the line of succession. >> you have to be an officer to be in the line of succession. we have a federal statute that puts the speaker in the line of succession. they're officers but not officers of the united states because they are not subject to

impeachment and not appointed pursuant to article two. there is a gap between officers and officers of the united states reinforcing the idea that officers of the united states is a term of art not just to federal office holders but refers only to those appointed, not those elected. >> justice kavanaugh. >> understand how you use griffin's case again. section three refers to insurrection and raises questions about who decides what processes are to be used that's ratified in the 1868, the next year chief justice chase opines that states do not have the authority that only congress has the authority to enforce that. that could be evidence, as you say, of the original public meaning, some evidence. it's a precedent but not binding. your point then it's reinforced because congress relies on that precedent in the enforcement act of 1870 and forms the back drop

against which congress does legislate and then as justice alito says, the historical practice for 155 years has been that that's the way it has gone. there haven't been state attempts to enforce disqualification under section three against federal officers in the years since. whether that's a federalist 37 liquidation argument, it all reinforces what happened back in 1868, 1869, and 1870. you want to add to that, alter that? >> i think that's exactly right. the last part you mentioned is crucial to our argument. congress relied on griffin's case and provided the back drop which they legislated and why we should read these enforcement mechanisms. the only one left is the federal insurrection statute as exclusive of state court remedies. a form of implied present um shun of other remedies in

reliance on griffin's case. >> if we agree on griffin's case, that's the end of the case, right? >> it should be in which congress wants a new statute. >> in addition to 2383. under that you agree that someone could be prosecuted for insurrection by federal prosecutors and if convicted, could be or shall be disqualified then from office. >> yes, the only carveat is arguing he has presidential immunity. >> griffin's case was a collateral proceeding so habeas relief. could griffin have -- so even if section three is not a basis for collateral relief in habeas which was new at the time could

griffin have raised at his trial or appeal the argument that the judge, you can't legitimately sit or constitutionally sit on my case because you are an insurrectionist and you are disqualified? could he have won then? why? >> no, not in griffin's case is correct. the court will have to -- >> why, griffin's case, there is language that might be a little bit broad but at bottom griffin's case is about a collateral habeas proceeding and griffin had brought his case after the fact. he needed a cause of action. why wouldn't it work in a trial for him to challenge the judge's constitutional ability to adjudicate his case? >> what griffin's case holds is only congress can provide the means of enforcing section three. under your hypothetical congress hasn't enacted such a statute that would give mr. griffin the

right to raise those types of argument at his trial. he would have to await legislation from congress. >> let's assume i disagree with you about the officers argument and section three covers president trump and congress enacts a provision that would allow a state or i guess it doesn't matter for this purpose, even a federal prosecutor to bring such an action to remove him from office. wouldn't that be in some tension with impeachment? he would be extracted from office outside of the process of impeachment. couldn't then president trump simply say well the only way to get me out of office is the impeachment process and not this action? >> i don't know how that would play out because that actions that were brought that i'm aware of under the 1870 enforcement act was state officials.

your hypothetical would apply to the president and any federal officer of the united states. i don't know how that played out in the courts and whether anyone ever tried to argue that impeachment was the exclusive remedy. >> nobody argued it. you said it is congress's province and it has to apply after one is holding office, is elected. i'm asking whether then the implication of your argument is that congress could not enact such provision that applied against federal office holders that were covered by section three as opposed to state ones. >> i believe they could. the impeach. cause says all civil officers of the united states you shall be removed from office upon impeachment and conviction. not the only way to remove them. congress can defund a position and effectively -- not the same as formal removal. the other relevant precedent is

when jeffersonians abolished positions for federal judges. some people thought it was unconstitutional. the only way to eliminate them was impeachment. that to me is a relevant precedent showing impeachment is not the only way to get rid of a federal official. >> one question a point of clarification. does president trump have any kind of due process right here? i'm wondering this goes not to the cause of action point to the present emotion shun point but what procedures he might have been entitled to. you don't make the argument that he was en titled to it or a right to ballot access so he was, you know, constitutionally entitled to an opportunity to be heard. is that right? >> we made that argument below. not in our briefs to this court for several reasons. you are suggesting and correct that the proceedings below to

were highly irregular. the question seems to suggest there might be due process issues. we didn't develop the argument in this court for several reasons. winning on due process doesn't do as much for our client. that would be a ruling for the state of colorado and make them continue to exclude him from the ballot. >> thank you. >> justice jackson. >> back to whether the presidency is one of the barred offices. i guess i'm a little surprised at your response to justice kagan. i thought that the history of the 14th amendment actually provides the reason for why the presidency may not be included. by that i mean, i didn't see any evidence the thaw the presidency was top of mind for the framers when they were drafting section three because they were actually dealing with a different issue. the pressing concern, at least as i see the historical record,

was actually what was going on at lower levels of the government. the possible infiltration and embedding of insurrectionists into the state government apparatus and the real risk the former confederates might return to power in the south via state-level elections either in local offices or as representatives of the states in congress. and that's a very different lens. if your concern is trying to make sure these people don't come back through the state apparatus and control the government in that direction, seems to me very different than the worry that an insurrectionist with seize control of the entire national government through the presidency. and so i just am surprised that you would, given the text of the provision and the historical context that seems to demonstrate their concern or focus was not about the presidency, i just don't understand why you are giving up