good morning, and thank you for being with us, i'm ana cabrera alongside josé diaz-balart and andrea mitchell on a day that will make history. for the first time ever, the u.s. supreme court set to hear a case about disqualifying a presidential candidate for allegedly engaging in an insurrection. >> the candidate in question, former president donald trump. at the heart of these arguments, whether trump can be barred from colorado's ballot over the events of january 6th, 2021, and his attempts to overturn the

election he lost. >> and hearing the case, the panel of nine supreme court justices including three that president trump himself appointed to the bench. >> whatever they decide has the potential to transform the trajectory of this year's election, and trump's bid to retake the white house making it the most consequential election case since bush v. gore a quarter century ago. >> these oral arguments expected to begin in moments and potentially last several hours, and we will be here with you for all of it. >> and joining us now, nbc's ken dilanian outside the court along with andrew weissmann, former fbi general counsel and former senior member of the moeller probe. and neal katyal. before we dive into the big question, your thoughts about the gravity of this moment,

exploring an issue that this country has never had to confront before. >> the founders of our 14th amendment in the 1860s put this in as an ironclad guarantee that we wouldn't have insurrectionists leading our government, and the colorado supreme court said after five days of the hearing and hearing evidence, donald trump was such an insurrectionist. this is the first time the united states supreme court has been asked to decide this question. it's momentous, and it goes to really the heart of whether the 14th amendment is still part of our constitution or not. >> andrew, it's such a consequential day, and the issues are so fundamentally important for our country, for our history, and for our future. >> absolutely. i do think, you know, when you -- when you're sort of listening to the intro about sort of what this case is, it's really hard not to remember. this isn't about politics, there's enormous political consequences to what happens here, this in many ways is a

window into the world that chuck and neal and i inhabit, which is the law world. here it is interpreting a part of the constitution that on its face is not crystal clear. we're going to hear tons of questions about various aspects because that's going into the legal world. am i saying that justices are not affected by the politics of this? no. i mean, that could easily be the case, but that's not normally what is going to happen and what we're going to hear. it's not going to be about politics. it's going to be very much embedded in legal discussion. it's just that it has enormous political consequences. >> not just political consequences but really consequences for our country's democracy. and i just want to note, we are learning they have a couple of decisions that they're going to be delivering before they dive into arguments, two decisions, so we will of course take the arguments as soon as that gets going. in the meantime, chuck, this is also a huge moment for the court as an institution, right? we have three supreme court

justices appointed by trump himself. you have public opinion of the court at record lows or near record lows. how big of a moment is this? >> you know, i am very worried about the fact that public confidence in our institutions, including our supreme court all seem to be at all-time lows. congress, media, and corporations and academia. the supreme court is not ahead of that wave. it's part of that wave. and so to andrew's point, incredibly important that the decision today be predicated on the law, not on politics, but on the law. in 1803, chief justice marshal in a famous case, marbury versus madison said it's emphatically the province of the courts to state what the law is, to declare the law. they have an opportunity to do that today. these are legal questions, legal issues, and i hope we have a legal determination. we may not all agree with it, but ana, i think it's dangerous that we are losing faith in our institutions. i think court today has an

opportunity to begin to rectify that. >> to that point, we were just looking at live pictures showing there are people outside the court with different points of view and we'll see that and hear that after the arguments. but ken dilanian, as always with the supreme court, we don't watch the arguments themselves, but we will be able to listen. that's what we're going to be bringing to all of you. give us a preview of what may happen and what listeners, what viewers should be listening for. >> reporter: as ana said earlier, not since the 2014 decided the 2000 presidential election in the bush v. gore case has any supreme court set of arguments and decision had these kinds of implications for a national election. and it's interesting to note that three of the justices, roberts, kavanaugh, and amy coney barrett all worked as young lawyers on behalf of the bush campaign in that florida recount. a little background on how we got here. there was a five-day trial before a district judge in

colorado. that judge ruled donald trump did engage in insurrection. there's an extensive fact record here that the supreme court can rely on. but that judge decided in the end that donald trump could be on the ballot, that this provision in the 14th amendment did not apply to him, but then the colorado supreme court later upheld the insurrection portion but reversed and decided that, in fact, mr. trump should be excluded from the ballot. so today the supreme court is going to hear from attorneys for six coloradans who brought this case led by a 91-year-old former republican member of the legislature. the supreme court will also hear from lawyers for the colorado secretary of state, and then of course from mr. trump's attorneys who argue that any move to keep him off the ballot would disenfranchise millions of voters and they also say it could cause bedlam in the united states, which the opponents seized on in their briefs and said that is a veiled threat. we've seen the kind of bedlam in the words of the proponents of

keeping mr. trump off the ballot. we saw that on january 6th, and it shouldn't be allowed to continue and that's why they say mr. trump should be excluded from the ballot. >> we want to bring in ken yoshino, let's go over the questions at the center of this case, the supreme court may be getting ready in just minutes to take this case up. the first one is is the president an officer of the united states? >> yes, absolutely. it's a pleasure to be hear on this momentous day. one of the lead arguments trump's lawyers are making in a counterintuitive way the presidents is not an officer of the united states. section 3 of the 14th amendment only applies to individuals who are officers of the united states. trump is arguing because of other provisions in the constitution like the appointments clause, the oath clause, the commissions clause that use the word officer in a way that would exclude the presidency that trump is not an

officer of the united states and therefore is not encompassed within this provision. >> chuck, another question, looking at the 14th amendment, section 3 is some of the wording around somebody who has already taken an oath to support the constitution, and a question about whether trump took an oath to support the constitution. >> logically, yes, legally tougher question. the president's oath is set out by the constitution and doesn't include the word support. it includes protect, preserve, and defend, but logically, ana, that means to support the constitution. if a very strict greeting is what you favor, then, no, he didn't actually promise, pledge, affirm to support the constitution. >> we have some textualists who are on the supreme court. >> but again, logically, it seems to be the same thing. that's how i read it, but that word doesn't appear there.

>> and andrew, the colorado trial court found donald trump did engage in an insurrection, so is that issue still in play? will that be debated and argued in front of the justices? >> that's going to be fascinating to see how much discussion there is about what happened on january 6th and donald trump's role. i would imagine many justices may avoid that, but welcome to law. that raises the issue of what is engagement, what is insurrection, what is to aid or comfort. >> abet was another word they used. >> all of those are legal issues for the supreme court. >> does it matter that he was never indicted by jack smith for insurrection? >> so the colorado people defending that say, no, it doesn't say that you have to be indicted. there has to be a finding. the issue is what's the standard of proof for that finding. the trump side said, yes, it should require a criminal

conviction. that will be one of the battlegrounds we're going to see. >> the other one is the question, neal, who's supposed to enforce section 3 of the 14th amendment? is it up to congress? is it up to the courts? >> yeah, so the technical language here is whether the 14th amendment is self-executing -- >> so sorry to interrupt you, the arguments are just getting underway. let's listen in to the u.s. supreme court. we are having a difficulty at the moment, technical difficulty getting the audio as we look at the nine justices and the lawyers who will be arguing this issue, and we should be able to get that audio any moment. in the meantime, let's continue the conversation. >> this is going to be happening in just moments.

the supreme court is already in the focus period of this case, and so -- >> not elected officials -- >> section 3 cannot be used to exclude a presidential candidate from the ballot even if that candidate is disqualified from serving as president under section 3 because congress can 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 3, and any state that does so is violating the holding of term limits 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 that they represent when elected. in both situations, a state is

accelerating the deadline to meet a constitutionally imposed qualification. and is thereby violating the holding of term limits. and 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 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 3 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 3? >> it is entirely up to

congress, justice thomas. and our argument goes beyond actually saying that section 3 is nonself-executing. we need to say something more than that. a nonself-executing treaty or a nonself-executing constitutional provision normally can be enforced by a state. griffins case goes beyond that by saying a state is not allowed to implement or enforce section 3 of the 14th amendment unless and until congress enacts implementing legislation allowing it to do so. under griffin's case, if this court were to adhere to the holding of griffin's case, there would not be any role for the states in enforcing section 3 unless congress were to enact a statute that gives them that authority. >> counsel, what if it somebody came in to a state, secretary of state's office and said i took the oath specified in section 3. i participated in an

insurrection, and i want to be on the ballot. can the -- does the secretary of state have the authority in that situation to say, no, you're disqualified? >> no, the secretary of state could not do that consistent with term limits because even if the candidate is an admitted insurrectionists, section 3 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 obtained a waiver, sometimes they did not, and each house would determine for itself whether to seat that elected insurrectionist because each house is the sole judge of the qualifications of its members. if a state banned even an admitted insurrectionist from the ballot it would be adding to and altering the constitution's qualifications for officer because under section 3 the candidate need only qualify during the time the candidate holds the office to which he's been elected. and under your honor's hypothetical, the secretary of state would be demanding

essentially that the candidate obtain a waiver from congress earlier than the candidate kneads to obtain that waiver. >> well, even though it's pretty unlikely or at least would be difficult for an individual who says, you know, i am an insurrectionist and i had taken the oath, that would require two-thirds of votes in congress, right? >> correct. >> that's a pretty unlikely scenario. >> it may be unlikely, but no secretary of state is permitted to predict the likelihood of a waiver because in doing so, they're adding a new qualification to the ability to run for congress, and the proper analogy, mr. chief justice is the state residency laws because the constitution says that a member of congress must inhabit the state that he represents when elected, and the lower courts have held in reliance on term limits that 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, says i'm a resident of indiana, i 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 through his own statements that he has no sbepgs intention oaf relocating to that state before election day, then the secretary of state would be enforcing an extant constitutional qualification rather than enforcing a new state-imposed qualification. and 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? and in this situation the colorado supreme court is going slightly beyond what section 3 requires because section 3 on its face bans an insurrectionist only from holding office. >> counsel, can i stop you a

moment and back up a minute. you admitted that 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's no debate that colorado has placed -- 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. >> under section 3. >> that's right. >> so history proves a lot know and to my colleagues generally, there's a whole lot of examples of states relying on section 3 to disqualify insurrectionist for state offices, and you're

basically telling us that you want us to go two steps further. maybe three. you want us to say that self-execution doesn't mean what it generally means. you want us now to say it means that congress must percent states or require states to stop insurrectionists from taking state office. this is a complete preefrmgs in a way that's rare. >> 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 it's not with respect to how we've defined self-executing. >> we're not asking this court to redefine the concept of nonself-execution. we were careful in our brief not to rely on that phrase. >> right, you are because it's not. >> that's right. and griffin -- >> so now the question is a very different one in my mind. i understand what you're relying on griffin. let's just be very clear.

griffin was not a precedential supreme court decision. >> that's correct. >> it was a circuit court decision by a justice who when he becomes a justice writes in the davies case, he assumed that jefferson davis would be ineligible to hold any office, particularly the presidency and treated -- and this is his words -- section 3 as executing itself needing no legislation on the part of congress to give it effect. so you're relying on a non-precedential case by a justice who later takes back what he said. >> by the key point with griffin's case and why it's an important precedent despite everything your honor said, it is not a pres tent of this court, but griffin's case provided the backdrop against which congress legislated the enforcement act of 1870 when it first provided an enforcement mechanism -- >> then did away with it later.

>> it did away with it later. >> that has nothing to say with respect to what section 3 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 state can't enforce section 3 against their own officials? i think logically those are two separate issues in my mind. can states enforce the insurrection clause against their own officeholders 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. >> and the answer to all three of those questions turns on whether this court agrees with the holding of griffin's case. if griffin's case is the proper enunciation of the law, then a

state cannot do any of the things your honor suggested unless congress gives it authority to do so -- >> so a non-precedential 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 precedential. >> congress relied on griffin's case when it enacted the enforcement act of 1870 -- >> mr. mitchell, if i may interrupt just to clarify. this sounds like your reply brief, where it sounds like you're not making a constitutional argument. you're making a statutory preemption argument. is that what you're doing here? you're not saying the constitution gives you this role. it's the kind of combination of griffin's case plus the way congress acted after griffin's case? >> yes. >> that gives you the rule? >> that's exactly right, justice kagan. we have implementing

legislation, congress took up the legislation provided by griffin's case and established in the 1870 enforcement act, later repealed. the only enforcement legislation that's currently on the books is the insurrection criminal statute, section 2383 and when congress made all of these decisions, the initial enactment of the enforcement act in 1870, all of those were made with griffin's case as the backdrop. >> please -- >> the understanding was that these remedies would be exclusive of state court remedies. there didn't need to be because griffin's case provided the back -- >> if i could just understand the argument a little better, suppose that we took all of that away, you know, suppose there were no griffins case and there were no subsequent congressional enactment, what do you then think the rule would be? >> as a matter of first principles without the griffins case, it's a much harder argument for us to make. what we would argue in that hypothetical is that there are

practical considerations unique to section 3 that counsel in favor of a are rule similar to what chief justice chase spelled out in griffins case and it goes to the policy concerns he talks about where this was a case grins case involved a convicted criminal who was taking a writ of habeas corpus on the grounds that the judge who tried his case was an insurrectionist and chief justice chase realizes if he enforces section 3 in this situation, it would nullify every official act taken not only by this particular judge but by anyone who was an insurrectionist or arguably an insurrectionist. >> why do you need those consequential concerns? why don't you have an argument that the constitution of its own force that section 3 of its own force preempts the state ability not to enforce section 3 against its own officers but against federal officers like in a tar bolss case kind of way.

>> there could be an argument that's more limited. you're suggesting there may be a barrier under the constitution to a state legislating an enforcement mechanism forspection 3 specific to federal officers. state courts lack the authority to issue mandamus relief against federal officials. >> why aren't you making those arguments? >> that doesn't get us -- >> that only gets you out of state court, doesn't get you out of federal court. >> the holding of griffins case went well beyond that. chief justice chase said in this opinion, which provided the backdrop for the enforcement legislation that states had no role in enforcing section 3 unless congress was to give them that authority through a statute that they passed pursuant to the -- >> but your argument's -- >> please, go ahead. >> i was just going to add one last thing. i think your argument is a little broader than that. i think if we accept your position that disqualifying someone from the ballot is adding a qualification, really your position is that congress can't enact a statute that would allow colorado to do what it's done either, because then congress would be adding a

qualification, which it can't do either. >> i don't agree with that. congress is not bound by the holding of term limits. term limits only prohibits the states from adding additional qualifications or altering the constitution's qualifications for federal office. it does not purport to restrain congress. if congress were to enact implementing legislation that authorized the states to exclude insurrectionists from the ballot, we believe that would be valid enforcement legislation under section 3 with an important caveat. there has to be con gruns and proportionality. >> why would that be permissible? because section 3 refers to the holding of office, not running for office, and 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 3 specifies. >> the answer to your question depends on how you interpret the word enforce in section 5, and some members of this court thought enforce means you can do nothing more than enact legislation that mirrors the 14th amendment's self-executing requirements and you can't go an inch beyond that. that's not the current jurisprudence of this court -- >> or allow us to decide whether it's congruent or pro proportional, and we would get into the question of whether that would be congruent and proportional. let me shift gears a little bit. i take you to argue and i think this is right, that the term self-executing is a misnomer as applied here. >> yes, it is. >> very often when we use the term what we're referring to is the proposition that a particular provision of the constitution or a statute in and of itself creates a private right of action. that's not what the issue is here. >> that's not the issue here, and sometimes the phrase self-executing is used that way. sometimes it's used this a different sense with self-executing treaties or nonself-executing treaties, the issue is whether that treaty has

any force -- >> right, but 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 question of who can enforce section 3 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 estoppel that there's nonmutual collateral estoppel, the court could decide this question for many other states, perhaps aum other states.

could it not lead to that consequence? >> i don't think so because colorado law does not recognize nonmutual collateral estoppel. i believe the effect would be determined by colorado law rather than the law of another state, but i think your question, justice alito gives rise to a greater concern. if this decision does not have precollusive effect in other lawsuits it opens the possibility that 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 court judges. they might conclude as a matter of fact that president trump did not have any intent to engage in incitement or make some other finding that differs from what this trial court judge found. >> yeah, exactly. in this decision the trial court in colorado thought that 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 questions. >> certainly. other states could conclude that the january 6th report is inadmissible hearsay. they might conclude statements within the report were hearsay, and they could reach a different conclusion with respect to the expert testimony. perhaps in another state we would have time to are produce our other than soesh yoelg. >> do they support a structural argument that supports the position you're taking here? >> i think they all mutually reinforce each other. we have an argument that is sufficient to dispose of this case, as well as the argument we're making based on terms limits. all of the consequentialists, we don't think it's necessary to get into consequences because

the law is clearly on our side. >> you keep saying term limits. there are other presidential qualifications in the constitution, age. >> yes. >> citizenship there's a separate amendment, the 22nd amendment that doesn't permit anyone to run for a second term. we have a history of states disqualifying of not all but 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 3? >> not quite. the question justice sotomayor is whether the state is violating term limits by adding to or altering the extant qualifications for the presidency and the constitution. now -- >> so you want us to say -- i'm wondering why the term limits qualification is important to you. >> because -- >> are you setting up so that if some president runs for a third

term that a state can't disqualify him from the ballot? >> of course a state can disqualify him from the ballot because that is 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. the same -- >> the same if they're under age when elected and the same if they're not a u.s. citizen. >> the same if they're not -- well, the same if they're 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 time of the election, but he turns 35 before inauguration. >> that would probably come up to us at some point, the state would make a decision and say he's ineligible, and we would have to decide that question then. but my point is so what adding qualifications to what term limit is your argument based on? i'm just confused.

>> you're changing -- i'll start with the age example. if a state like colorado says you can't appear on our presidential ballot unless you are 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 day. what colorado has done here, what their supreme court has done is similar because under section 3 president trump needs to qualify during the time that he would hold office and the colorado supreme court is saying to president trump, you have to show that you would qualify under section 3 now at the time of the election or at the time that we the state supreme court -- >> now i understand. >> just a point of clarification so we're all on the same age, when you say term limits, you mean our decision in the term limits case. >> u.s. term limits against thornton. >> maybe i should call it thornton instead of term limits. >> does it have something tooted with -- to do can the with the

fact that the particular circumstances 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 extant constitutional requirements, so -- but you're drawing a distinction. >> i'm drawing a distinction because some are categorical. >> what do you mean by categorical, whether or not you are an insurrectionist is or is not categorical? >> it it is not categorical. >> 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 not make it a categorical determination. >> we don't know whether president trump will be excused before he's sworn in if he wins

the election on january 20th, 2025, and a court that is saying president trump has to show now today that he would qualify under section 3 is accelerating the deadline that the constitution provides for him to obtain a waiver from congress. >> that's by virtue of the hold office. >> section 3 bans him only from holding office. >> can i ask you now that i have the floor. >> yes. >> can i ask you to address your first argument, which is the office officer point? >> oh, sorry. >> why don't we -- >> could we -- >> is that okay if we do this and then we go to that? >> sure, sure. >> will there be an opportunity to do officer stuff or should we? >> absolutely. absolutely. [ laughter ] >> i just want to understand. on this theory, what is the sum total of ways that the -- that section 3 can be enforced, that somebody out there can say, yes,

there's 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 that enforcement can happen? >> the answer to that question is going to depend on what your honor thinks of griffin's case. if this court were to affirm the rationale of griffin's case, then the only way section 3 could be enforced is through congressional legislation that creates a remedy. congress could reinstate the -- >> is that your position? >> we believe griffin's case is correctly decided and should -- >> and how does that fit with a lot of the answers to the questions we've been given. you said, well, congress has to have the ability by a two-thirds vote to lift the disqualification. >> right. >> but so too 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 two-thirds majority, then surely it can't be right that one house of congress can do the exact same thing by a simple majority. >> there certainly is some tension, justice kagan, and some commentators have pointed this out, professor paulson criticized -- >> then i must be right. >> [ laughter ] >> we don't think this problem is fatal. to us the two-thirds provision that allows congress to lift it is something that can do a pardon power, where congress through enforcement legislation creates a mechanism by which the insurrectionist issue is to be termed by some entity, it could be the legislature in the case of an elected member of congress. each house has the ability to judge the qualification of their members. if it's outside the situation of congress, it would be whatever congress enacts, so when it was the writs of quo warranto, each federal prosecutor could seek his ouster from office under section 3, but it was still

subject to that amnesty provision in section 3 of the 14th amendment. we do acknowledge the tension, but we don't think that's an insurmountable obstacle. >> see why there's tension, if you analogize the lifting by congress of the disqualification by a two-thirds vote to a pardon, then surely one would not argue that, the fact that the president or governor can pardon someone from a criminal conviction or a criminal offense means that the person couldn't be prosecuted in the first place for the criminal offense. >> that's right. >> right. >> yes. >> so i don't see what the tension is. they're two separate things. did the person engage in this activity which is prohibited, and second, even if the person did engage in the activity, are there reasons why the disqualification should be lifted or the pardon should be granted? >> that's right. if the court accepts the holding of griffin's case, that's exactly the regime that we would have. >> i don't see -- >> but also there's a limit on what one can infer from the mere fact that congress can lift the disqualification.

you can infer from that it is impermissible to have a prior determination that the person did engage nts insurrection. >> isn't that what you're doing? >> what's the intention is you would have the exact same actor and say that actor can lift the disqualification by a two-thirds vote, but you're saying only that actor can put the disqualification into effect in the first place, and it could do that by far less than two-thirds. it can do that just by a simple majority of one house. >> or it could to that by doing nothing at all, if the holding of griffin's case is correct because just congressional inaction would -- >> the only thing that takes to have no action is, you know, half plus one saying we don't feel like it. >> but that's why we tried to characterize our griffins case argument the way we did where we rely on preefrms documents as well. >> don't you think griffin's case is relevant to trying to figure out what the original public meaning of section 3 of

the 14th amendment is? it's by the chief justice of the united states a year after the 14th amendment, that seems to me highly probative of what the meaning or understanding of that language otherwise elusive language is. >> we didn't rely too heavily on the point that you're making partly because we have this other opinion from justice chase in the jefferson davis case. so that argument could potentially boomerang on us, which is why we didn't push it hard in our briefing. i think your honor is right. >> why don't you finish your sentence and we'll move on. >> it is relative and probative for sure. there is other evidence that might perhaps undercut the usefulness of trying to characterize griffin's case as completely emblematic of the original understanding. >> why don't we move on to the officer point and justice jackson, i think you -- >> yeah, so i had a question about it because you're making a textualist argument, and as i look at section 3, i see two parts of the first sentence of

section 3. the first is a list of offices that a disqualified person is barred from holding, and 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, your honor. >> i don't see that in your brief. i see a lot of focus on the second but not on the first. >> there is definitely more focus on the second, and we acknowledge we have a somewhat heavier lift on the first point. >> why? it it seems to me you have a list and president is not on it. >> that's certainly an argument in our favor. with respect to officer of the united states, that's used

repeatedly in the constitution and the commissions clause and the appointments clause and the impeachment clause, and every time it appears it's used in a way that clearly excludes the president. >> i understand. that's the second argument. the first argument is we have a list of offices that a person is barred from holding, right? >> yes. >> under your theory or under the language, and we see it begins with senator, representative, elector of the president and vice president and all other civil or military officers, offices. >> offices under the united states. >> offices under the united states. but the word president or vice president does not appear -- not appear specifically in that list. >> that's right. >> so i guess i'm trying to understand are you giving up that argument, and if so, why? >> we're not giving it up at all. you're right, president the and the vice president are not specifically listed, but the anderson litigants claim they're encompassed within the meaning of the phrase office under the united states. >> and do you agree that the

framers would have put such a high and significant and important office sort of smuggled it in through that catch all phrase? >> we don't agree at all. that's why we're making the argument the president c is -- from the offices. >> i'm sorry, your brief says you didn't take a position on that point. >> i'm sorry. >> your brief said -- i don't have the cite. i apologize. you don't affirmatively argue that point i think is what your brief said. >> in the blue brief? >> yes. >> we certainly argued it in the reply brief and i'd have to look at how we phrased it. we did point out in our opening brief there are potential issues if this court were to rule on office under because that phrase appears in other part os. constitution, including the emoluments clause, the impeachment disqualification clause. >> would we necessarily have to say -- i thought the point was that section 3 was unique, that there was something happening

with section 3 that could explain why certain offices were left off or whatnot. >> perhaps, but there are also implications from other parts of the constitution which really help us on the officer of the united states argument in that second part of section 3 but cut against us when it comes to office under the united states and the anderson litigants point this out in footnote 9 in the red brief, if this court were to say -- that could imply the president is not covered by the emoluments. >> stepping back on this, a lot hinges on the difference between in your argument, between the term office and officer. >> yes. >> and i guess i'm wondering what theory do you have from an original understanding or a textualist perspective, why those two terms so closely related would carry such different weight? >> because it's clear from the constitutional text that there are officers that do not hold offices under the united states.

for example, the speaker of the house and the president pro temp ray, they're described as officers in article 1 who are chosen by the legislature. they also have to be officers if they're able to be covered by the presidential succession act, because under the constitution, only officers can serve when there's a vacancy in the presidency and the vice presidency, so they're offices but not officers under the united states because of the incompatibility clause. if you're a member of congress you cannot simultaneously hold an office under the united states. that provision of the constitution clearly 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? >> not of which we're aware. so these were textual inferences we're drawing from constitutional structure, but we aren't relying necessarily on the thought processes of the people who drafted these

provisions because they're unknowable, but even if they were knowable, we're not sure they would be relevant in any event because this language, especially in section 3 was enacted as a compromise. there were certainly radical republicans who wanted to go much further, if you look at some of the earlier draefts that were pro posed. some people wanted to go further and ban them even 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. it 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 this 1948 decisions that were made. >> justice thomas, anything further? justice alito? >> is there any history of

states using section 3 as a way to bar federal office holdingers? >> not that i'm aware of, justice alito because of griffin's case. griffin's case has been the law -- i shouldn't say it's been the law, it's a circuit court decision, but that has been the settled understanding since 1870 when it was decided. >> thank you. >> i want to pin down your principal argument on section 3. you argue that 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 that the president is not an officer of the united states, correct? >> i would say a little more forcefully than what your honor just described. we believe the presidency is excluded from office under the united states, but the argument we have that he's excluded, the president as an officer of the united states is the stronger of the two textually. >> a bit of a gerrymandered rule, isn't it? deciding to benefit only your

client? >> i certainly would call it gerrymander, that implies nefarious. >> you didn't make it up, i know some scholars have discussed it. just so we're clear, 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. every president -- to our knowledge, every other president. john adams might also be excluded because he took the oath as the vice president, which is not an officer. president biden would be covered, he took the oath as a member of congress. that's true of every previous president. >> would that be true if we were to hold more narrowly in a reversal that it's not section 3 that's at issue but thornton and others as to whether section 3 can be enforced by states against the president? >> that would extend to every presidential candidate, not -- >> exactly, not just yours.

>> correct. >> thank you. >> justice kagan. >> and if i could just understand, i mean, given that you say you done have a lot of evidence that the founding -- or the generation that we're looking at is really thinking about office versus officer of the united states, i mean, it would suggest that we should ask is that rule a sensible one, if they had thought about it, what reason would they have given for that rule. and it does seem as though there's 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 compromised legislation, and sometimes this happens with statutory compromises and even constitutional compromises, there's an agreed upon set of words that can pass both houses of congress, but different

legislators may have had goals and motivations. they didn't all get their way. this was the text that was settled upon. it does seem odd that president trump would fall through the cracks in a sense, but if officer of the united states means appointed officials, there's just no way he can be covered under section 3. the court would have to reject the officer argument to get to that point. >> is there any better reason if you go to the office argument that justice jackson was suggesting, is there any better reason for saying that an insurrectionist cannot hold the whole panoply of offices in the united states, but we're perfectly fine with that insurrectionist being president. >> i think that's a tougher argument for us to make as a policy matter because one would think of all offices, the presidency would be the one to keep under the the confederate insurrectionists. that's why we're learning more on the officer of argument, we're not conceding office under, but we definitely have the stronger textual case and structural case on officer of the united states. >> thank you. >> thanks. >> justice gorsuch.

>> i want to respond to some of the specific textual arguments on the officer of with respect to the appointments clause, the impeachment clause, and some of the others. >> yeah. >> so the way -- >> i'll start with the commissions, ball has been bouncing on that back and forth, and i wanted to see where you landed today. >> two different textual inferences that could be drawn from each of those provisions. the commissions clause i think is the strongest because it says the president shall commission all the offices of the united states. shall is mandatory, all is all encompassing, and the president doesn't commission himself and he can't commission himself. so that's encompassing. and the president doesn't commission himself, he can't commission himself. that's one of the first problems. i think the anderson litigants are trying to say there is some implied exception there because the president obviously can't commission himself, so we should construe that to mean all offices other than the president.

the only sensible distinction we can see given the commission of the 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 and conviction of all high crimes and misdemeanors. the president and vice president are listed separately from officers of the united states and the appointments clause we know the president is not appointed pursuant to article 2 and neither is the vice president and neither are members of congress, so they can't be officers either. >> how does article 1, section 6, fit into this discussion? >> and this is about officers being in the line of succession? >> yes, exactly. >> you have to be an officer to be in the line of succession. we have a federal statute that puts the speaker and the president pro tempore in the line of succession. they're officers. but they're not officers of the united states. because they're not subject to impeachment, they're not commissioned by the president,

they're not appointed pursuant to article 2. so there is this gap between the term officer and the phrase officers of the united states, reinforcing the idea that officers of the united states is a term of art that doesn't refer just to federal office holders, which is what the anderson litigants are claiming, but refers to those who are appointed, not those elected. >> thank you. >> justice kavanaugh. >> let me make sure i understand how you're using griffin's case again, section 3 refers to insurrection and raises questions about who decides what processes are to be used, that's ratified in 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, at least some evidence, it is precedent, but not binding, your point then is it is reinforced because congress itself relies on that precedent in the enforcement act of 1870

and forms the backdrop which congress does legislate and the historical practice for 155 years has been that that's the way it has gone or hasn't -- haven't been state attempts to enforce disqualification under section 3 against federal officers in the years since. whether that's a federalist 37 liquidation argument at all reinforces what happened back in 1868, 1869 and 1870. you want to add to that, alter that? >> i think that's exactly right. and the last part you mentioned, your honor, is crucial to our argument, congress relies on griffin's case, provided the backdrop against which they legislated, which is why we should read these enforcement mechanisms and the only one left is the federal insurrection statute, 2383, as exclusive of state court remedies it is a form of implied preemtion.

>> we agree on griffin's case and what you elaborated on there, that's the end of the case, right? >> it should be, yes, unless congress decides to enact a statute. >> a new statute, in addition to 2383, and just to be clear, under 2383 you agree someone could be prosecuted for insurrection by federal prosecutors and if convicted, could be or shall be disqualified then from office? >> yes, but the only caveat i would add is our client is arguing that he has presidential immunity, so, we would not concede that he can be prosecuted for what he did on january 6th, under -- >> understood. asking about the theory of 2383, thank you. >> griffin's case was a collateral proceeding, so it is habeas relief. could griffin have -- even if section 3 is not a basis for kla

collateral relief in habeas which was new at the time, could he have raised in direct appeal the argument that judge chevy, you can't legitimately sit on my case because you're an insurrectionist and you're disqualified, could he have won then? >> no. >> why? >> not if griffin's case is correct. a court would have to reject the rational of griffin's case to accept what your honor is suggesting. >> why? griffin's case -- i think there is some 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 chevy's constitutional ability to adjudicate this case? >> what griffin's case holds is only congress can provide the means of enforcing section 3. and under your honor's hypothetical, congress has not enacted any such statute that would give mr. griffin the right to raise those types of

arguments at his trial. so he would have to await legislation from congress. >> let's assume that i disagree with you about the officer argument, so section 3 covers president trump. let's say that congress enacts a provision that would allow a state or i guess it doesn't really matter for this purpose, even a federal prosecutor, to bring such an action against him, to remove him from office. want that be in some tension with impeachment? he would be extracted from office outside of the office 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 quo warranto action. >> i don't know how that would play out. the quo warranto actions that were brought that i'm aware of under the 1870 enforcement act were against state officials and your honor's impeachment hypothetical would apply not

only to the president, but any federal officer of the united states. >> i know. >> so i don't know how that played out in the courts and whether anyone ever tried to argue that impeachment was the exclusive remedy for -- >> i don't think anybody did argue it. i guess what i'm asking is you said it is congress' exclusive province and you also said that it has to apply, you know, after one is holding office is elected, and 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 3 as opposed to state ones. >> i believe they could. and the impeachment clause says that the president, the vice president, and also the law officers of the united states shall be removed from office upon impeachment and conviction. but it doesn't say that's the only way you can remove them. congress can defund a position and effectively not quite the same as formal removal, but the other relevant precedent is stored against laird, when the jeffersonians repealed the midnight judges act and

abolished all the positions for federal judges and some people thought that was unconstitutional, because they thought the only way you can eliminate federal judges was to impeachment, but chief justice marshall upheld that statute. that to me is a reevant assessment. >> let me ask one question, a point of clarification, does president trump have any kind of due process right here? i mean, i'm wondering, this kind of goes not to the cause of action point of the preemption point but the question of what procedures he might have been entitled to. you don't make the argument he was entitled to any, nor did i see the argument he had any kind of constitutionally protected right to ballot access so that he was, you know, constitutionally entitled to an opportunity to be heard. is that right? >> we made that argument below, we did not make that in our briefs to this court for several reasons. your honor, i think, is suggesting and this is correct that the proceedings below to put it charitiably were highly

irregular. >> i wasn't suggesting that. >> the question seems to suggest there might be due process issues, but we didn't develop that argument in this court for several reasons. winning on due process doesn't do as much for our client as the other arguments that we have made because that would be a ruling specific to this particular proceeding in the state of colorado and would leave the door open for colorado to continue on remand to exclude him from the ballot. >> okay. 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 because i thought that the history of the 14th amendment actually provides the reason for why the presidency may not be included. and by that i mean i didn't see any evidence that the presidency was top of mind for the framers when they were drafting section 3 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 that 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 that 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 will 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 that their concern or focus was not about the presidency, i just don't understand why you're giving that argument. >> there is some evidenc