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 evidence to

suggest that. >> is there any evidence to suggest that the presidency was what they were focused on? >> there is some evidence of that. there were people saying we don't want jefferson davis to be elected president and there was also one of the drafts of section 3 specifically mentioned the presidency and the vice president. >> but it wasn't the final enactment. >> right. it wasn't the final enactment, but it shows there was some concern about some people about confederate insurrectionists ascending to the presidency. we look at the historical evidence and pick the evidence we like and interpret is tan den shally because you can throw this counterveiling evidence back in our face. we wanted to focus on the text of the constitution, this was a compromised provision that was enacted in section 3. >> let me ask you another question about the states. you have forcefully made an argument about the states not being able to enforce section 3, so if we agree with you on that,

what happens next? i thought you also wanted us to end the litigation so is there a possibility that this case continues in federal court if that's our conclusion? >> i don't see how it could, unless congress would enact a statute in response to this. >> your point is that it would -- we would have to say congressional enacting legislation is necessary for either state or federal enforcement? >> that's correct. >> all right. final question, the colorado supreme court concluded that the violent attempts of the petitioner supporters in this case to halt the count on january 6th qualified as an insurrection as defined by section 3 and i read your opening brief to accept that those events counted as an insurrection. but then your reply seemed to suggest they were not. so, what is your position to that? >> we never accepted or conceded in our opening brief that this was an insurrection. what we said in our opening brief was president trump did

not engage in any act that can plausibly characterized as insurrection. >> why did this -- why is this your argument -- your brief says it wasn't because i think you say it did not involve an organized attempt to overthrow the government. so -- >> that's one of many reasons. an insurrection needs to be an organized, concerted effort to overthrow the government of the united states through violence. and this riot that occurred -- >> a chaotic effort to overthrow the government is not an insurrection? >> none of these criteria were met. this was a riot. it was not an insurrection, the events were shameful, criminal, violent, all of those things but did not qualify as insurrection as that term is used in section 3. >> thank you. >> thanks. >> thank you, counsel. >> thank you.

>> mr. murray. >> mr. chief justice and may it please the court, we are here because for the first time since the war of 1812, our nation's capitol came under violent assault. for the first time in history, the attack was incited by a sitting president of the united states to disrupt the peaceful transfer of presidential power. by engaging in insurrection against the constitution, president trump disqualified himself from public office. as we heard earlier, president trump's main argument is that this court should create a special exemption to section 3 that would apply to him and to him alone. he says section 3 disqualifies all oath breaking insurrectionists, except a former president who never before held other state or federal office. there is no possible rational

for such an exemption, and the court should reject the claim that the framers made an extraordinary mistake. section 3 uses deliberately broad language to cover all positions of federal power requiring an oath to the constitution. my friend relies on a claimed difference between an office under and an officer of the united states. but this case does not come down to mere prepositions. president trump's other arguments for reversal ignore the constitutional role of the states, in running presidential elections. under article 2 and the 10th amendment, states have the power to ensure that their citizens electoral votes are not wasted on a candidate who is constitutionally barred from holding office. states are allowed to safeguard their ballots by excluding those

who are under age, foreign born, running for a third presidential term, or as here those who have engaged in insurrection against the constitution in violation of their oath. i welcome the court's questions. >> all right, do you have contemporaneous examples and by contemporaneous i mean shortly after the adoption of the 14th amendment, where the states disqualified national candidates, not its own candidates, but national candidates? >> the only example i can think of, justice thomas, is the example of governor -- of congressman christie who was elected in georgia, and i believe 1868. and the governor of georgia refused or declined to certify the results of that election because mr. christie was disqualified. but i think it is not surprising that there are few examples because we didn't have ballots in the same way back then. candidates were either write-in

or they were party ballots, so the states didn't run the ballots in the same way. and there wouldn't have been a process for determining before an election whether a candidate was qualified, unlike the processes that we have now that states have created under their article 1 and article 2 powers to run elections. >> it would seem that particularly after reconstruction and after the compromise of 1877 and during the period of redeemers that you would have that kind of conflict. there were a plethora of confederates still around, there were any number of people who would continue to either run for state offices or national offices. so that would suggest that there would at least be a few examples of national candidates being disqualified. if your reading is correct. >> there were certainly national candidates who were disqualified by congress refusing to seat them. >> i understand that. but that's not this case.

i'm -- did states disqualify them, that's what we're talking about here. i understand congress would not seat them. >> other than the example i gave, no, but, again, your honor, that's not surprising, because there wouldn't have been tv states certainly wouldn't have the authority to remove a sitting -- >> so what is the purpose of -- what is the purpose of the section 3? states were sending people -- the concern was that the form of confederate states would continue being bad actors. and the effort was to prevent them from doing this, and you're saying that, well, this also authorized states to disqualify candidates. so, what i'm asking you for, if you are right, what are the examples? >> your honor, the examples are states excluded many candidates for state office, individuals holding state offices. we have a number of published cases of states -- >> i understand that. i understand the states

controlling state elections and state positions. what we are talking about here are national candidates. the -- i understand you look at phoner or foot, shelby foot or mcpherson, they all talk about, of course, the conflict after the civil war. and there are people who felt very strongly about retaliating against the south. the radical republicans. but they did not think about authorizing the south to disqualify national candidates. and that's the argument you're making, and what i would like to know is do you have any examples of this. >> many of those historians filed briefs in our support in this case, making the point that the idea of the 14th amendment was that both states and the federal government would ensure rights and that if states failed to do so, the federal government would certainly also step in. i think the reason why there aren't examples of states doing

this is an idiosyncratic one is that the elections worked differently back then. states have a background power under article 2 and the 10th amendment to run presidential elections. they didn't use that power to police ballot access until about the 1890s, and by the 1890s, everyone had received amnesty and these issues had become moot. >> i would like to look at from the 30,000 foot level. the whole point of the 14th amendment was to restrict state powers, states shall not abridge privileges immunity, won't deprive people of property without due process, they won't deny equal protection. on the other hand, it augmented federal power under section 5. congress has the power to enforce it. so, wouldn't that be the last place that you would look for authorization for the states including confederate states to enforce implicitly authorize, to enforce the presidential

election process? that seems to be a position that is at -- at war with the whole thrust of the 14th amendment and very ahistorical. >> no, your honor, first, we would locate the state's authority to run presidential elections not in the 14th amendment, but in article 2. and that power is nearly plenary. >> but you're relying on -- you have no reliance on section 3, is that what you're saying? >> no, your honor. we have reliance on section 3 in as far as article 2 gives states this broad power to determine how their electors were selected and that broad power implies the narrower power to enforce federal constitutional qualification. >> the narrower power you're looking for is the power of disqualification. right? that is a very specific power in the 14th amendment. and you're saying that was implicitly extended to the states under a clause that doesn't address that at all. >> we would say that nothing in the 14th amendment takes away from the states their broad and

nearly plenary power to determine the manner of selecting their electors in the manner that they see fit. as this court said, that power is nearly plenary unless something in the constitution tells states they can't do it. and the structure of the 14th amendment certainly was intended to expand federal power, and certainly to restrict state power in some ways. but states are bound to enforce and apply, for example, section 1 of the 14th amendment, and so it is hard to see why states wouldn't be similarly bound or at least -- >> just a greater inclucludes t lesser argument. just because there is one authorized means in the constitution to a particular end does not mean that there is any means to that end, and so i think you're taking that electors argument and bringing it into section 3, where as the chief justice says there is just no -- justice thomas there is no

historical evidence to support the theory of section 3, nor the overall -- to explain the overall structure of the 14th amendment. >> we certainly have a long history in this country of states using their power to determine the manner of selecting presidential electors to enforce other qualifications in the constitution. i don't take it there is a great debate about whether minority states are allowed to exclude underaged or foreign born candidates or if president bush or obama wanted to run for a third term that they could be excluded under that broad article 2 power. i don't see why section 3 should be treated any differently. section 3 speaks in the same -- >> when you look at section 3, the term insurrection jumps out. and the question is -- the questions are what does that mean, how do you define it, who decides, who decides whether someone engaged in it, what processes as justice barrett alluded to what processes are appropriate for figuring out

whether someone did engage in that, and that's all what chief justice chase focused on a year after the 14th amendment, to say these are difficult questions, and you look right at section 5 of the 14th amendment as the chief justice said and that tells you congress has the primary role here. i think what is different is the processes, the definition, who decides questions really jump out at you with you look at section 3. your response to that. >> certainly justice kavanaugh, there has to be some process for determining those questions and the question becomes does anything in the 14th amendment say that only congress can create that process? and section 5 very clearly is not an exclusive provision. it says congress shall have power. >> i think the question that you have to confront is why a single state should decide who gets to be president of the united states. in other words, this question of whether a former president is disqualified for insurrection,

to be president, again, is, you know, just say it, it sounds awfully national to me. so whatever means there are to enforce it would suggest they have to be federal, national means. why does -- if you weren't from colorado and you were from wisconsin or you were from michigan, and it really, you know, what the michigan secretary of state did is going to make the difference between, you know, whether candidate a is elected or candidate b is elected, that seems quite extraordinary, doesn't it? >> no, your honor. ultimately it is this court that is going to decide that question of federal constitutional eligibility. and settle the issue for the nation. and certainly it is not unusual that questions of national importance come up. >> i suppose this court would be saying something along the lines of that the state has the power to do it. but i guess i was asking you to go a little bit further and say why should that be the right rule? why should a single state have the ability to make this

determination, not only for their own citizens, but for the rest of the nation? >> because article 2 gives them the power to appoint their own electors as they see fit. but if they're going to use a federal constitutional qualification as a ballot access determinant, it is creating a federal constitutional question that then this court decides and other courts, other states, if this court affirms the decision below, determining that president trump is ineligible to be president, other states would still have to determine what effect that would have on their own state's law and state procedure. >> if we affirmed and we said he was ineligible to be president, yes, maybe some states would say, well, you know, we're going to keep him on ballot anyway, but, really, it is going to have -- as justice kagan said, the effect of colorado deciding and it is true, i want to push back a little bit on, well, it is a national thing because this court will decide it. you say that we have to review colorado's factual record with clear error as the standard of

review. so we would be stuck, the first mover state here, colorado, we're stuck with that record. and, you know, i don't want to get into whether the record -- maybe the record is great, but what if the record wasn't? what if it wasn't a fulsome record? what if the hearsay rules are, you know, one offs? or what if this is just made by the secretary of state without much process at all? how do we review those factual findings? doesn't that just buckle back into this point that justice kagan was making, you know, that we made with mr. mitchell too, that it just doesn't seem like a state call. >> three points, your honor. the first is that ordinarily this court reviews factual findings for clear error. president trump made the point in his reply brief on constitutional questions that require a uniform resolution this court can do more -- something more like a boss court

style and we would have objection to that given the record here the facts that are disputed here are incredibly narrow. the essence of our case is president trump's own statements that he made in public view for all to see. >> then that's saying that in this context, which is very high stakes, if we review the facts essentially de novo, you want us to watch the video of the ellipse and make a decision without any deference to or guidance from lower court fact finding. that's unusual. >> ultimately president trump himself urges this court to decide the merits of his eligibility on the factual record here on page 2 of his brief. he's never at any point in this proceeding suggested there was something else that needed to be in the factual record, any other witnesses that he wanted to call to present his case, and, again, the essence of our case is his own statements and in particular his own videotaped statements on the ellipse. >> mr. murray, to circle back -- i'm sorry to interrupt, before we left it, i want to circle back to where justice kagan was,

do you agree that states' powers here over its ballot for federal officer election have to come from some constitutional authority? >> members of this court have disagreed about that. >> i'm asking you. >> the majority of this court has said that those powers come from article 2. but we think that the result is the same, whether the court locates it in article 2 or in reserve power under the 10th amendment. >> but you accept that this court is held -- you're not contesting this or asking us to revisit that decision in thornton or term limits, it has to come from some constitutional authority. >> no, we're not, your honer. >> and we're not talking about the qualifications clause, nobody is talking about whether he's 35 years old or a natural born -- whatever. not at issue. okay. we're talking about something under the 14th amendment and section 3, so that's where you have to find your authority,

right? >> we find our authority in article 2, in states plenary power to run their election. >> federal election -- but this is for a federal office has to come from the constitution, and you're seeking to enforce section 3. >> we're suggesting that in their broad power to determine the -- to select presidential electors in any manner they see fit, they can take account of section 3 and apply section 3. >> could they do it without section 3? could they disqualify somebody for on whatever basis they wanted out side of the qualifications clause? >> that would run into term limits. >> we think so, right? so it has to come back to section 3. and if that's true, how does that work give than section 3 speaks about holding office, not who may run for office, a point mr. mitchell was making earlier, i want to give you a chance to respond to it, because it seems to me that, you know, that you're asking to enforce an election, context, provision to

the constitution speaks to holding office. so it is different than the qualifications clause which is all about who can run and then serve, yeah. >> i don't know that it is different. other qualifications for office similarly talk about eligibility for the office. there is nothing unconstitutional about a 30-year-old trying to get on the ballot. >> except for this disability can be removed, right, under section 3. that's what's different about it. thoughts on that. >> well, the fact that there is an extraordinary provision for removing the disability does not negate the fact that the disability exists today and it existed since january 6th, 2021, when president trump engaged in insurrection against the constitution. >> so were his actions after that date before he left office ultraviras. >> that would raise the separate question of whether one can collaterally attack the actions of a de facto officer and that may be the one place in griffin's case at the very end where we would agree, which is when justice chase said i've

talked to my supreme court colleagues and we unanimously agree that you can't collaterally attack all official actions of an officer who is in fact holding the position. >> circle back to where we started, right? this is section 3, your authority has to come from there and it is about holding office and it is a particular kind of disability that can be removed by congress. and it is the only one like that. they can't remove age or citizenship. how should that inform our thoughts about a state's efforts to regulate the ballot for a federal office? >> the colloquy my friend had with justice alito earlier is illustrative here. congress has an extraordinary removal power, does not negate the disability exists today and indefinitely into the future, much like the fact that the president can pardon somebody for criminal conviction doesn't make that conviction somehow contingent. and i would note that if

president trump were appointed to an office today, if he were appointed as a state judge, he could not hold that office which shows that the disability exists now. and the fact that congress has a power to remove the disability doesn't negate the present qualification, nor does it bestow on president trump a constitutional right to run for offices that he cannot hold in violation of state law and state procedure under article 2. >> in fact, there was a congressional action to permit confederate officers or people who supported the confederacy to hold office before the 14th amendment, correct? there must have been a thought that there was a pre-existing disqualification. >> that's absolutely right. there were a flood of amnesty requests because everybody understood at the time that those people would be disqualified the moment that section 3 was enacted forever, unless they received amnesty.

>> what do you do with the -- what i would seem to me to be plain consequences of your position. if colorado's position is upheld, surely there will be disqualification proceedings on the other side. and some of those will succeed. some of them will have different standards or proof, some will have different rules about evidence, maybe the senate report won't be accepted in others because it is hearsay, maybe it is beyond a reasonable doubt, whatever. in very quick order, i would expect, though my predictions never have been correct, i would expect that, you know, a good number of states will say whoever the democratic candidate is, you're off the ballot and others for the republican candidate, you're off the ballot, and it will come down to just a handful of states that are going to decide the presidential election. that's a pretty daunting consequence. >> well, certainly, your honor, the fact there are potential

frivolous applications of a constitutional provision isn't a reason -- >> hold on. you might think they're frivolous, but the people who are bringing them may not think they're frivolous. insurrection is a broad term and if there is some debate about it, i suppose that will go into the decision and then eventually what, we would be deciding whether it was an insurrection when one person did something opposed to someone doing something else? and do we wait until near the time of counting the ballots and sort of go through which states are valid and which states aren't? >> there is a reason section 3 has been dormant for 150 years and it is because we haven't seen anything like january 6th since reconstruction. insurrection against the constitution is something extraordinary. >> it seems to me you're avoiding the question, which is other states may have different views about what constitutes insurrection. and now you're saying, well, it is all right because somebody, presumably us, are going to decide, well, they said they thought that was an

insurrection, but they were wrong and maybe they thought it was right and we have to develop rules for what constitutes an insurrection. >> yes, your honor, like this court interprets other constitutional provisions, this court can make clear that an insurrection against the constitution is something extraordinary. and in particular it really requires a concerted group effort to resist through violence, not some ordinary application of state or federal law, but the functions mandated by the -- >> on your point that it has been dormant for 155 years, i think the other side would say the reason for that is chief justice chase's opinion in 1869 and griffin's case to start which says that congress has the authority here, not the states, that's followed up by the enforcement act of 1870, where congress acts upon that understanding, which is followed and there is no history contrary in that period as justice thomas pointed out, no history contrary in all the years leading up to this of states exercising such authority. i think the reason it has been

dormant is because there is a settled understanding that chief justice chase, even if not right in every detail, was essentially right in the branches of the government have acted under that settled understanding for 155 years and congress can change that. and congress does have section 2383, of course, the insurrection act criminal statute. but congress can change it, they have not in 155 years in relevant respects for what you want here today at least. >> no, justice kavanaugh. the reason why it has been dormant is because by 1876, essentially all former confederates had received amnesty and we haven't seen anything like an insurrection since then. i would like to address your point -- >> can i go to that point? >> after the -- >> sorry. >> justice alito. >> i don't know how much we can infer from the fact that we haven't seen anything like this before, and therefore conclude we're not going to seeing some in the future, from the time of the impeachment of president

johnson, until the impeachment of president clinton, more than 100 years later, there were no impeachments of presidents. and in fairly short order over the last couple of decades we had three. so, i don't know how much you can infer from that. >> certainly, but if this court affirms, this court can write an opinion that emphasizes how extraordinary insurrection against the constitution is, and how rare that is, because it requires an assault not just on the application of law, but on constitutionally mandated functions themselves like we saw on january 6th, a coordinated attempt to disrupt a function, mandated by the 12th amendment and essential to constitutional transfer of power. >> let me ask you about whether the power you described as plenary really is plenary. suppose that the outcome of an election for president comes down to the vote of a single state. how the electors of a single

state are going to vote. and suppose that candidate a gets majority of the votes in that state, but the legislature really doesn't like candidate a, thinks candidate a is an insurrectionist, so the legislature then passes a law ordering its electors to vote for the other candidate. you think the state has that power? >> i think there may be principles that come into play in terms of after the people have voted that congress-- that the state can't change the rules midstream. i'm not sure because i'm not aware of this court addressing it. >> let's change it so it is not after the election. it is three days before the election, by the fact that the polls in that state look bad. can they do it? >> this court emphasized for much of american history state legislatures picked their own electors and assigned their own electors themselves. but that would be much more extraordinary than what we have here, which is simple

application of normal state ballot access principles to say that we're only going to put on the ballot an individual who is qualified to assume the office. >> can i ask you again the question that justice gorsuch asked, and you -- to which you responded by citing the de facto officer doctrine, look at that going forward, rather than judging the validity of an act committed between the time when a president allegedly engages in an insurrection and the time when the president leaves office. during that interim period, would it be lawful for military commanders and other officers to disobey orders of the president in question? >> i'm not sure that anything gives military officers the authority to adjudicate effectively the legality of the presidency. >> why not? you say he's disqualified from the moment it happens. now, i understand the de facto officer doctrine might be used

to prohibit people from seeking judicial remedies for decisions that take place after the date he was disqualified. but if he's in fact disqualified from that moment, why would anybody have to obey a direction from him? >> well, ultimately there still has beens to some kind of procedure in place to adjudicate the disqualification, certainly congress could impeach a sitting president but that's the only remedy i'm aware of that exists for removal or otherwise negating the authority of a sitting president. >> why? >> well -- >> on what theory? section 3 speaks about disqualification, from holding office, you say he's disqualified from holding office from the moment it happens. >> correct, but -- >> it operates, you say, there is no legislation necessary. i thought that was a whole theory of your case, and no procedure necessary, it happens automatically. >> well, certainly you need a procedure in order to have any remedy to enforce the

disqualification. >> that's a whole separate question. that's the de facto doctrine, doesn't work here. put that aside. he's disqualified from the moment, self-executing, done. and i would think that a person who would receive a direction from that person, that president, former president, in your view, would be free to act as he or she wishes without regard to that individual. >> i don't think so. i think again the -- >> why? >> the officer doctrine would nevertheless come into play to say -- >> no, de facto -- that doesn't work, mr. murray, because de facto officer is to ratify the conduct that is done afterwards and insulated from judicial review. put that aside. i'm not going to say it again. put it aside, okay. i think justice alito is asking a very different question and a more pointed one and more difficult one for you, i understand, but i think it deserves an answer. on your theory, would anything compel a lower official to obey an order from, in your view, the

former president? >> i'm imagining a situation where, for example, a former president was -- a president was elected and they were 25 and they were ineligible -- >> no, no, no. we're talking about section 3, please don't change the hypothetical, okay. please don't change the hypothetical. i like doing it too, but please don't do it. >> but the point i'm trying to make -- >> he's disqualified from the moment he committed an insurrection, whoever it is, whichever party, that happens. boom. it happened. what would compel -- i'm not going to say it again -- try to answer the question, if you don't have an answer, fair enough, we'll move on, what would compel a lower official to obey an order from that individual? >> because ultimately we have statutes and rules requiring chains of command, the person is in the office and even if they don't have the authority to hold the office, the only way to get someone out of the office of the presidency is impeachment and so i think if you interpreted section 3 in light of other provisions in the constitution

like impeachment, while they hold office, impeachment is the only way to validate that they don't have the ability to hold that office and should be removed. >> mr. murray, can i -- can i just ask you about something justice kagan brought up earlier, which is the concern about uniformity and the lack thereof if states are permitted to enforce section 3 in presidential elections. i guess i didn't really understand your argument or your response to her about that. >> well, certainly if congress is concerned about uniformity, they can provide for legislation and they can preempt state legislation -- >> but you say that's not necessary. >> it is not necessary in the absence of federal enforcement legislation, these questions come up to this court in the same way that other federal questions come up to this court, which is that a state adjudicates them. if the state hasn't provided sufficient process to comport with due process and notice and opportunity to be heard, one can make those challenges, but

assuming as here we have a full evidentiary record and opportunity to present evidence. >> i understand that we could resolve it, so that we have a uniform ultimate ruling on it. i guess my question is why the framers would have designed a system that would -- could result in interim disuniformity in this way, where we have elections pending, and different states suddenly eligible, you're not on the basis of this kind of thing. >> well, what they were concerned most about was ensuring that insurrectionists and rebels don't hold office. once one understands the imperative they had to ensure that oath breakers wouldn't take office, it would be a little bit odd to say that states can't enforce it, that only the federal government can enforce it, and that congress can essentially rip the heart out of section 3 by a simple majority, by failing to pass enforcement legislation. federalism creates redundancy and here the fact that the

states have the ability to enforce it as well absent federal preemption allows another layer of safeguards. >> thank you, counsel. justice thomas? justice alito? >> i suppose there is a country that proclaims again and again and again that the united states is its biggest enemy, and suppose that the president of the united states, for diplomatic reasons, think that it is in the best interest of the united states to provide funds or release funds, so that they can be used by that country. could a state determine that that person has given aid and comfort to the enemy, and therefore keep that person off the ballot? >> no, your honor. this court has never interpreted the aid and comfort language which also is present in the treason clause. but, commentators suggested it

has been rarely applied because treason prosecutions are so rare. aid and comfort really only applies in the context of a declared war or at least an adversarial relationship where there is in fact a war between two countries, and, second, the intense standard would do a lot of work there. under section 3, whatever the underlying conduct is, engaging in insurrection or aid and comfort has to be done with the intent to further the unlawful purpose of the insurrection or to aid the enemies in their pursuit of war against the united states. >> let me come back to the question of what we would do if we were -- if different states had adjudicated the question of whether former president trump is an insurrectionist, using a different record, different rulings on the admissibility of evidence, perhaps different standards of proof, then what would we do? >> ultimately this court would, first of all,

deficiencies in the record, the court could refuse to hear the case or -- >> would we have to decide what is the appropriate rule of evidence that should be applied in this case? would we have to decide what is the appropriate standard of proof? would we give any deference to the findings by state court judges, some of whom may be elected? would we have to have our own trial? >> no your honor. this court takes the evidentiary record as it is given, and here we have an evidentiary record that all the parties agree is sufficient for a decision in this case. and then as i discussed earlier, there is a possibility of a bose corp. independent review of the facts, but what we have here is an insurrection that was incited -- >> but you're really not answering my question, it is not helpful if you don't do that. suppose we have two different records, two different bodies of evidence, two different rulings on questions of admissibility, two different standards of

proof, two different sets of fact findings, by two different judges or maybe multiple judges and multiple states. then what do we do? >> first, set the legal standard and then decide which view of the record was correct. i think under that -- >> which view of what record? >> if this -- >> of which record? >> if this court had two cases before it and both of the records were sufficient insofar as both sides have the opportunity to present their case, and the essential facts in the record that everyone agreed was sufficient for decision, then this court would have to look at the evidence presented and decide which holding was correct and decide that issue for the country. and certainly here when there is a complete record, lower courts then will be applying that decision and i think it is unlikely that any court would say we're going to reach a different decision than the u.s. supreme court did, particularly if the court relies on the facts, the indisputable facts of what president trump said on video and in his twitter feed,

which is really the essence of our case here. >> you had an expert, just take that example, an expert testify about the meaning of what president trump said. do you think it is possible that a different state court would apply daalbert differently and say this person should not be allowed to express an expert opinion on that question? you think that's beyond the realm of imagination? >> not at all, your honor. two points on that, number one, president trump didn't appeal the admission of that evidence in this case, but number two, the second point is that professor -- he didn't opine on the meaning of president trump's words, opined on the effects the words had on violent extremists. >> i'm not taking a position one way or the other about whether the experts' testimony should

have been admitted or anything like that, or the meaning of president trump's words. i'm just trying to get you to grapple with what some people have seen as the consequences of the argument that you're advancing, which is that there will be conflicts in decisions among the states, that different states will disqualify different candidates. but i'm not getting a whole lot of help from you about how this would not be an unimaginable situation. >> if this court writes an opinion affirming on the basis of the indisputable facts of what president trump said on january 6th and in the weeks leading up to it, and his virtual confession on twitter after the fact, it would be reversible error for any other state to conclude otherwise on that question of federal law or at the very least this court could address that when those issues come up, but it seems unlikely. >> justice sotomayor? >> there is two sides to the other side's position.

the first is that it is not self-executing. i want to put that aside. deal with if we were to hold that states don't have the right to enforce or create a cause of action in this situation. they want the flip to say that no, but even congress can't do it because they need implementing legislation. address that argument because assume we rule that states don't have it, what would you have us say for the other side of the argument? one of my colleagues says you need -- not chief justice, but circuit court justice chase said which is that somehow you need implementing legislation, like the 1870 act. you seem to say that's not true, because they could decide not to

seek the -- seat a candidate, et cetera. so i don't know that legislation is necessary. >> certainly there are historical examples of members of congress under congress' article 1 power to judge the qualifications of its members, members of congress refusing to seat ineligible candidates under section 3 who have won election. in the context of the presidency, i think it would create a number of really difficult issues if the court says there is no procedure for determining president trump's eligibility until after the election. and then what happens when members of congress on january 6th when they count the electoral votes say we're not going to count electoral votes cast for president trump, because he's disqualified under section 3, under the electoral count reform act, a number of the amicus briefs such as those of professor ginsburg, hasan and foley shows a constitutional crisis in the make and is all the more reason to address the

issues now in a judicial process on a full evidentiary record so everybody can have certainty on the issues before they go to the polls. >> justice kagan? >> you talked, you relied on the state's extensive powers under the electors clause, you talked about the states having a role in enacting typical ballot access provisions. i guess, you know, strikes me that we have put some limits on that, and i'll just give you anderson are versus selebrese, we said states are limited in who they can take off the ballot and that was a case about minor party candidates, but the reason was that one state's decision to take a candidate off the ballot affects everybody else's rights. and we talked about the pervasive national interest and the selection of candidates for national office, we talked about how an individual state's decision would have an impact

beyond its own borders, so, if that goes for minor political party candidates, why doesn't it go for certiorari for this case? >> constitutional principles like section 3 apply to everybody. in calabrese, the question was a first amendment question. article 2 is constrained by first amendment principles and in that case, the state law deadlines for when a minor party candidate got on the ballot just came too soon to be reactive to what major parties had done and therefore risked disenfranchising people who were disillusioned with who the maj parties picked and it raises first amendment problems. here there is no first amendment problem. and the state is trying to enforce a -- >> it did come up in the first amendment, but there is a broader principle there and a broader principle about who has power over certain things in our federal system.

and, you know, within our federal system states have great power over many different areas. but that there is some broader principle about that there are certain national questions that you have -- where states are not the repository of authority. and i took a lot first amendment, not first amendment, a lot of anderson's reasoning as really about that, like, what is a state doing deciding who gets to -- who other citizens get to vote for president? >> colorado is not deciding who other states get to vote for president. it is despiting how to assign its own electors under article 2 power and the constitution grants them that -- >> but the effect of that is obvious, yes? >> no, your honor, because different states can have different procedures, some states may allow insurrectionists to be on the ballot. they may say we're not looking past the papers, we're not looking into federal constitutional questions.

even in this election cycle, there are candidates on the ballot in some states even though they're not natural born citizens and off the ballot in other states and that's just a function of states' power to enforce -- to preserve their own electors and avoid disenfranchisement of their own citizens. >> thank you. >> justice gorsuch? >> haven't had a chance to talk about the officer point and i want to give you an opportunity to do that. mr. mitchell makes the argument that particularly in the commission's clause, for example, all officers are to be commissioned by the president seems to be all encompassing that language. and i'm curious your response to that, and along the way, if you would, i poked a little bit at the difference between office and officer in the earlier discussion you may recall. but i think one point your friends on the other side would make is, well, that's just how the constitution uses those terms. so, for example, we know that

the president pro tem of the senate and the speaker of the house are officers of the united states, because the constitution says they are. but we also know that they don't hold an office under the united states because of the incompatibility clause that says they can't. maybe the constitution to us today, to a lay reader, might look a little odd in the distinction between office and officer, a distinction. maybe that's exactly how it works. thoughts? >> i would start with the idea that the meaning of officer in the 1780s was the same meaning it has today, a person who holds an office. and certainly in particular context, like the commissions clause, it appears that that's referring -- that that is referring to a narrower class of officers because we know that there are -- >> it says all. >> we know that there are classes of officers, like the president pro tem, who don't get their commissions from the

president. >> that's because the constitution elsewhere says that. >> we know that the appointments clause refers to a class of officers who get their appointment from the constitution itself. rather than from presidential appointment. people who get their commissions from the president himself are not commissioned by the president. and so if you read the appointments clause in line with the commissions clause, then the commissions clause is really talking about the president's power, if one needs a commission, it is the president who grants it. but i think it is important to bring us back to section 3 in particular because that was 80 years -- >> before we get to that. do you agree the constitution does make that distinction particularly with respect to the speaker and the president pro tem? >> the constitution makes that distinction but the -- at least in section 3, an officer of the united states is a person who swears an oath and holds an office. now, the president pro tem and the speaker of the house, they don't swear a constitutional oath in that capacity. they swear a constitutional oath

if they are a senator or representative in congress in that separate and nonofficial capacity. but i think that -- >> you agree they're officers who don't hold an office? >> they're officers who may hold an office but don't swear an oath under article 6 in that official capacity. >> how can they hold an office under the incompatibility clause? says they can't. >> that's a fair point. and i think that may be an exception to the general rule and one might consider them perhaps officers of the house and senate because they are appointed by those bodies and preside over those bodies. >> then the constitution says they're officers of the united states. be an exceptional circumstance. >> okay. thank you. >> justice kavanaugh? >> the concerns of some question of the states having such power over a national office, other questions about the different states having different standards of proof. underscored by this case, at least the dissenting opinion

below said, i've been -- quote, i've been involved in the justice system for 33 years now and what took place here doesn't resemble anything i have seen in a courtroom, end quote. added, quote, what transpired in this litigation fell woefully short of what due process demands, end quote. i don't know whether i agree or not. i'm not going to take a position on that. the fact na someone is complaining not about the bottom line conclusion but about the processes that were used in the state would seem -- that would be permitted seems to underscore the concerns that have been raised about state power. just wanted to give you a chance to address that. that was powerful language. not disagreeing about the conclusion but about the very fairness of the process. >> yes, your honor. that language was with respect to the justice was not correct. president trump had the opportunity to call any

witnesses, cross examine our witnesses, he had the opportunity to testify if he wanted to testify. of course, the process was expedited because ballot access decisions are always on a fast schedule. in this whole case from the trial court all the way up to this court, president trump has never identified a single process other than expert depositions that he wanted to have that he didn't get. he had the opportunity for fact witness depositions. he had the opportunity to call witnesses remotely. he didn't use all of his time at trial. there was ample process here. this is how ballot access determinations are decided all the time. >> second question, some of the rhetoric of your position -- i don't think it's your position. some of the rhetoric of your position seems to suggest unless the states can do this, no one can prevent insurrectionists from holding federal office. obviously, congress has enacted statutes, including ones still in effect, section 2383 of title 18, prohibits insurrection.

if you are convicted of that, you are -- shall be disqualified from holding any office. so there is a federal statute on the books. president trump has not been charged with that. what are we to make of that? >> two things, your honor. section 2383 was initially enacted about six years before section 3. it wasn't meant as implementing legislation related to section 3. by the time section 3 was ratified, most confederates had received criminal pardons. >> the question is different. if the concern you have, which i understand is that insurrectionists should not hold federal office, there's a tool to ensure that that does not happen. namely, federal prosecution of insurrectionists. if convicted, congress made clear, you are automatically barred from holding a federal office. that tool exists, you agree, and could be used but has not -- could be used against someone

who committed insurrection, you agree with that? >> that's right, your honor. i would make the point that the framers of section 3 clearly understood that criminal prosecutions weren't sufficient. because often times, insurrectionists go unpunished, as was the case in the civil war. the least we can do is impose a civil disqualification penalty so even if we don't have the stomach -- >> they had the provision in effect then from 1870 until 1948. but then obviously that dropped out and hasn't been seen as necessary since then. last question, in trying to figure out what section 3 means, to the extent it is vague language, what about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice of letting the people decide? your position has the effect of

disenfranchising voters to a significant degree. should that be something -- does that come in when they think about should we read section 3 this way or that way? what about the background if you agree of democracy? >> i would like to make three points on that. the first is that constitutional safeguards are for the purpose of safeguarding our democracy, not just for the next election cycle, but for generations to come. second, section 3 is designed to protect our democracy in that very way. the framers knew from painful experience that those who had violently broken their oath to the constitution couldn't be trusted to hold power again because they could dismantle our constitutional democracy from within. they created a democratic safety valve. president trump can ask congress to give him an necessity by a two-thirds vote. unless he does that, our constitution protects us from insurrectionists. this case illustrates the danger of refusing to apply section 3 as written because the reason we

are here is that president trump tried to disenfranchise 80 million americans who voted against him. the constitution doesn't require that he be given another chance. >> thank you. >> justice barrett? >> the general rule is that absent rare circumstances state courts and federal courts share authority. state court authority has authority. there are certain limits, in which the constitution itself pre-empts the state's ability to resolve constitutional questions. you said earlier that once a president is elected, you accept that a state couldn't do anything about that. you couldn't -- colorado couldn't enact its own provision and use it to get the secretary of state or the president or anyone else out of office. i assume that's because of this principal of structural preemption. >> yes, your honor.

>> that means your eggs are in the article 1 basket. you are saying that even though all the questions that people have been asking have suggested that there's a problem with giving a single state the authority to render a decision that would have an affect on a national election, but you are saying that those structural concerns which might otherwise lead to the kind of result that you would accept after someone is in office are overcome by the electors' clause? >> states run presidential elections. once states have selected the electors and the electors have voted, states have no more power over the candidate who has been nominated. until then, the states have the power to adjudicate those issues. >> justice jackson? >> when i asked you about the uniformity concern and the troubling potential disuniformity of having different states enforce section

3 with respect to presidential elections, you seemed to point to history in a certain way. you said, i think, that the framers actually envisioned states enforcing section 3, at least in some circumstances with there were insurgents. i'm wondering whether presidential elections were such a circumstance. the framers actually envisioned states enforcing section 3 with respect to presidential elections as opposed to senate, representatives, the more local concerns. can you speak to the argument that really section 3 was about preventing the south from rising again in the context of these sort of local elections as opposed to focusing on the presidency? >> two points on that, justice

jackson. first is that as i discussed earlier, there isn't the same history of states regulating ballot access at this time. rules to restrict presidential candidates wouldn't have existed, they wouldn't have been raised one way or the other. >> right. i'm not making a distinction between ballot access and anything else. >> understood. the more broad part is that what's clear from history is the framers were concerned about charismatic rebels who might rise to the presidency of the united states. >> why didn't they put the word president in the list in section 3? the thing that really is troubling to me is i totally understand your argument, but they were listing people that were barred. president is not there. i guess that just makes me worry that maybe they weren't focusing on the president and, for example, the fact that electors of vice president and president

are there suggests that really what they thought was if we are worried about the charismatic person, we will bar insurrectionist electors and, therefore, that person is never going to rise. >> this came up in the debates in congress over section 3 where they said, why haven't you included president and vice president in the language? the senator responds, we have. look at the language any office under the united states. >> yes. but doesn't that at least suggest ambiguity? this sort of ties into justice kavanaugh's point. in other words, we had a person right there at the time saying what i'm saying. the language here doesn't seem to include president. why is that? so if there's an ambiguity, why would we construe it to -- as justice kavanaugh pointed out -- against democracy? >> johnson agreed with that reading. any office is clear, the constitution says about 20 times -- >> i'm not going to