Omg embarrassing, I think that was Kagan. Fixing!
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Omg embarrassing, I think that was Kagan. Fixing!
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Justice Barrett: Congress passing enacting legislation, wouldn't that also add a qualification to the Constitution?
Trump Lawyer: No. It would be fine.
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Justice Alito: Wouldn't Congress passing enacting legislation disqualifying running also run into the problem of potentially lifting the disqualification, adding a qualification then?
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Justice Alito: It isn't really self-executing, that's more a provision of the constitution in and of itself creates a private right of action, but that isn't here, right?
Trump's Lawyer: Yes.
Alito: But why use this term, instead of addressing "who can enforce Section 3 with respect to a presidential candidate."
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Alito: The consequences of the CO decision would be severe. Would other states also not use their own rules and use estoppel, extending this ruling to all other states?
Trump Lawyer: Colorado law does not recognize that kind of estoppel, and CO law would be used. Different factual records, different findings, etc.
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[Quick bathroom break]
Coffee Y'all. :)
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Justice Sotomayor (I think): Why are you leaning so heavily on this term limit argument? Are you setting up a "can't disqualify for a third term" argument for the future?
Trump's Lawyer: No, no, no... nothing like that....
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Trump's Lawyer: If you had a statute that said you cannot run if you are not 35 by Election Day, that would be unconstitutional because a 34 year old could turn 35 by Election Day. Same argument as qualification and lifting of the disability.
("Term Limits" sounds like it might be a court case name? I might have to look that up I'm not sure what they are arguing there)
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J. Jackson: Can I ask you to address the first argument, the "officer" point.
J. Sotomayor: Noooooo. no no. lets go back. Will we have time for officer stuff later?
**laughter**
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Justice Sotomayor: What is the sum total of ways that enforcement can happen.
Trump's Lawyer: If you adopt Griffin's case logic, then Congress has to enforce it.
Sotomayor: Is the 2/3 lifting disability provision, isn't that in tension with the idea that one house of congress can do it the same thing with a simple majority?
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Trump's Lawyer: we recognize the tension, but it's not fatal.
Justice [ ]: Just because there is a lifting of disability doesn't make the initial enforcement invalid. It is like a pardon after a criminal prosecution.
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Sotomayor: What is in tension, is that you would have the exact same actor who can lift the disability with a 2/3 votes, but only that actor can put it into effect in the first place, with a simple majority of one house.
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J. Kavanaugh asked about the context of the 14th amendment, I didn't hear it, but Trump's lawyer said it's probative, but they didn't want to have it boomerang back on them.
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J. Jackson: Looking at the text: there are a list of barred offices, and the oath subject to disqualification. Which side are you arguing?
Trump's Lawyer: Both
Jackson: But your brief focuses on the 2nd argument, right?
Trump's lawyer: Yes, but both.
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Jackson: President and Vice President doesn't appear in the list of offices. Do you say that the framers would not have put an office that high in that catch all phrase?
Trump's Lawyer: I would not assume that, yes.
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Jackson: I thought the point was that Section 3 is unique, that there is something that could explain why certain officers were left off.
Trump's Lawyer: There are other indications in the Constitution, but examples that cut for and against our arguments.
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Trump's Lawyer: It is clear by the constitutional text that there are officers who are not office holders *under* the United States. Members of Congress can't hold office "under" the United States, for instance, but could be an officer.
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Justice Alito: Is there any history of states using Section 3 to bar federal office holders?
Trump's Lawyer: No, because of Griffin's case.
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Justice Sotomayor: You argue even though the president may or may not qualify as an officer under the United States, it is your principle argument that they are not an officer of the United States.
Trump's Lawyer: yes, we think there is argument for both, but that the presidency is not an office is the least disruptive option.
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Kagan: It seems there is no particular reason why the drafters would find the only people who have engaged in insurrection who are not disqualified is the highest office (president + VP).
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Trump's Lawyer: If it's a policy argument, we do not have a great position. It is odd that the president would be left out (what haha)
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Justice [Gorsuch?]: Asking about commissioned officers under the Commissions Clause.
Trump's Lawyer: members of Congress, president, vice president, are not commissioned, and therefore not officers of the US. None are appointed.
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Justice [Gorsuch?]: What about the line of succession argument?
Trump's Lawyer: Speaker and President Pro-tempore are called officers, but they are not officers of the United States.
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Identifying the voices is so hard.
Justice Kavanaugh asked a question about the custom and practice since the section was adopted.
Trump's Lawyer: All in line with our reading, adopting Griffin's case. Congressional statutory adoption is a kind of preemption.
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Justice Barrett: Could Griffin had raised that the Judge cannot sit on their case because the Judge was an insurrectionist?
Trump's Lawyer: No. Not with Griffin's case.
Barrett: Isn't the case about collateral habeas proceeding? It was an after-the-fact cause of action. Why couldn't he make that argument *at trial*?
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Trump's Lawyer: Congress has not enacted legislation that permits that argument to be made.
Barrett: Lets say I disagree with you on the officer question (hmmmmm!?)
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Barrett: If congress enacted legislation after Trump's elected and is an insurrectionist, would that remove him from office? (I think that is what she asked). Would he not then argue impeachment and removal is exclusive?
Trump's Lawyer: Not sure impeachment has ever been considered the exclusive route...
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Barrett: Isn't the implication that they couldn't enact the legislation against federal offices then?
Trump's Lawyer: No, it should be. There has been statutes that have removed federal judges before apart from impeachment.
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Barrett: Does Trump have a due process right here? What procedures he might be entitled to? I didn't see this argument anywhere, or a right to access, or a right to be heard?
Trump's Lawyer: The proceedings below were irregular. We didn't develop that, due process doesn't help our client if we win really (leaves door open to exclusion).
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J. Jackson: I'm surprised at your response to Kagan. I thought the history of the 14th Amendment does provide an answer. The pressing concern on the historical record, was the lower levels of the government. The possible infiltration of insurrectionists in lower offices.
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Jackson: Seems very different than an insurrectionist will seize the hold government. I'm surprised that given the text and the historical context you are giving that argument up?
Trump's Lawyer: There is some evidence that there was concern about confederate insurrectionists ascending to the President. We didn't cherry pick here, we thought the argument was better done through the text.
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Jackson: CO Supreme Court concluded that the violent attempts in this case to halt the count qualified as an insurrection. I read your opening brief, you seemed to accept that in your brief. Your reply seemed to imply it was not.
Trump's Lawyer: We do not concede it is an insurrection. Trump did not engage in anything.
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Jackson: Okay, why was this not an insurrection?
Trump's Lawyer: Insurrection needs to be an organized, concerted effort to overthrown the government with violence.
Jackson: So chaotic effort is okay?
Trump's Lawyer: No, no. There was no overthrowing attempt.
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SWITCHING SIDES
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CO Lawyer: For the first time, a sitting president of the United States incited a riot and engaged in insurrection. He is disqualified from public office.
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CO Lawyer: There is no rationale for an exemption for President that doesn't apply to any other office under Section 3.
This case does not come down to mere prepositions. Officers "under" versus "of" the United States.
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CO Lawyer: States have always had a role in preventing disqualified candidates from running.
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J. Thomas: Do you have examples of states disqualifying national candidates?
CO Lawyer: Only example is governor of Georgia in 1800 (something). There are few examples though because there were not ballots in the same way that we have now. No pre-election process like we have now to check.
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Thomas: After reconstruction and during period of redeemers, you'd expect that kind of conflict and at least a few examples, would you not?
CO Lawyer: There are Congress refusing to seat...
Thomas: That isn't the state.
CO Lawyer: No, but it isn't surprising.
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Thomas still asking for examples.
CO Lawyer: The historical record shows the federal and state governments both would step in. The difference is that the elections were run differently. They didn't use the power to regulate presidential elections until after amnesty to the confederates.
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CO Lawyer: Article II gives states broad power to states to determine presidential elections, which grants them power of disqualification determinations.
C.J. Roberts (??): That is under the 14th Amendment, no?
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I am having so much trouble with CJ Roberts vs. Alito vs. Gorsuch vs. Kavanaugh voices. They need to identify themselves!
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J. Kagan: The question you have to confront is why does CO get to decide who can be president of the whole United States? If you are from #WISCONSIN (I SEE YOU!) couldn't you have a problem with that?
CO Lawyer: No because this court will settle the issue for the nation.
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Kagan: I am asking you to go further, why should this be the right rule. That one state can decide this for everyone, as a principle.
CO Lawyer: Other states would still need to determine what the effect of this ruling would have on affirmation.
Barrett: yeah, but I mean, really. It will have the effect of CO deciding.
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Barrett: You are arguing for clear error. Are we not stuck with the factual record from CO then? Deciding this for the whole country? What if the record *wasnt* great?
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CO Lawyer: Ordinary clear error review applies, but sometimes on constitutional question with need for uniform resolution, there can be independent review (we have no objection to that)
Barrett: You want us to review de novo, without *any* deference to the lower court?
CO Lawyer: The factual record isn't really in dispute. Its made of Trump's own statements.
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Justice Gorsuch: This isn't the disqualification clause, the age, residency, etc. This is under Section 3, so the authority has to come under Section 3?
CO Lawyer: Under Article II is the grant of authority, to select presidential electors as they see fit, that they can apply Section 3 in that process.
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Justice Gorsuch noting that this is the only disqualification that can be removed. How should that inform the Court?
CO Lawyer: The fact that Congress has an extraordinary removal of disqualification power doesn't mean that the disability doesn't change their current status as disqualified. And state law doesn't permit the current status of disqualification from running.
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C.J. Roberts: Insurrection is a broad term. And then this Court will be determining whether insurrection occurred or not? When do we determine which states are valid in the election process? And we'd need to adopt rules for that process?
CO Lawyer: ... yes... that is generally what this Court does when interpreting Constitutional provisions (he said it nicer).
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