DONALD J. TRUMP, Petitioner, v. NORMA ANDERSON, ET AL., Respondents
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Elena Kagan, John G. Roberts, Jr., Ketanji Brown Jackson, Neil Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Jonathan F. Mitchell, Shannon W. Stevenson, Jason C. Murray

John G. Roberts, Jr.: We'll hear argument this morning in Case 23-719, Trump versus Anderson. Mr. Mitchell.

Jonathan F. Mitchell: Mr. Chief Justice, and may it please the Court: The Colorado Supreme Court held that President Donald J. Trump is constitutionally disqualified from serving as president under Section 3 of the Fourteenth Amendment.

The Colorado Supreme Court's decision is wrong and should be reversed for numerous independent reasons. The first reason is that President Trump is not covered by Section 3 because the President is not "an officer of the United States" as that term is used throughout the Constitution. "Officer of the United States" refers only to appointed officials, and it does not encompass elected individuals, such as the President or members of Congress.

This is clear from the Commissions Clause, the Impeachment Clause, and the Appointments Clause, each of which uses "officer of the United States" to refer only to appointed and not elected officials. The second reason is that 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 by altering the Constitution's qualifications for federal office. The Colorado Supreme Court's decision is no different from a state residency law that requires members of Congress to inhabit the state prior to Election Day, when the Constitution requires only that members of Congress inhabit the state 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 potentially tens of millions of Americans. I welcome the Court's questions.

Clarence Thomas: 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  -- 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?

Jonathan F. Mitchell: It is entirely up to Congress, Justice Thomas.

And our argument goes beyond actually saying that Section 3 is non-self-executing.

We need to say something more than that because a non-self-executing treaty or a non-self-executing constitutional provision normally can still be enforced by a state if it chooses to enact legislation. The holding of Griffin's Case goes beyond even that by saying that a state is not allowed to implement or enforce Section 3 of the Fourteenth Amendment unless and until Congress enacts implementing legislation allowing  it to do so.

So, under Griffin's Case, which we believe is correctly decided -- the Anderson litigants disagree with us on that point -- but, 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.

John G. Roberts, Jr.: Counsel, what if somebody came into 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?

Jonathan F. Mitchell: No, the secretary of state could not do that, consistent with Term Limits, because even if the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office and even win election to office and then see whether Congress lifts that disability after the election. This happened frequently in the wake of the Fourteenth 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. So, if a state banned even an admitted insurrectionist from the ballot, it would be adding to and altering the Constitution's qualifications for office 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 needs to obtain that waiver.

John G. Roberts, Jr.: Well, even though it's pretty unlikely or at least would be difficult for an individual who says, you know, I  --I am an insurrectionist and I had taken the oath, that would require two -thirds of votes in Congress, right?

Jonathan F. Mitchell: Correct.

John G. Roberts, Jr.: Well, that's a pretty unlikely scenario.

Jonathan F. Mitchell: 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 to 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 all 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 --

John G. Roberts, Jr.: So even if somebody --

Jonathan F. Mitchell: -- before the date of election.

John G. Roberts, Jr.: -- comes in and says I'm  -- I'm a resident of -- to the secretary of state's office in Illinois and 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?

Jonathan F. Mitchell: Well, 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 intention of 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.

Sonia Sotomayor: Counsel, can I stop you a moment and  -- 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.

Jonathan F. Mitchell: Correct.

Sonia Sotomayor: In fact, they do it frequently for takings clauses.

Here, there's no debate that Colorado has placed that  --provided that cause of action.

You want to go a step further and say that this, like the Treaty Clause, requires implementing legislation to permit the state to disqualify an insurrectionist --

Jonathan F. Mitchell: That's correct.

So  --

Sonia Sotomayor: -- under Section 3.

Jonathan F. Mitchell: That's right.

Sonia Sotomayor: So history proves a lot to me --

Jonathan F. Mitchell: Mm-hmm.

Sonia Sotomayor: -- and to my colleagues generally.

There's a whole lot of examples of states relying on Section 3 to disqualify insurrectionists for state offices, and you're basically telling us that you want us to go two steps further. You want to -- 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 permit states or require states to stop insurrectionists from taking state office.

And -- and so this is a complete preemption in a way that's very rare, isn't it?

Jonathan F. Mitchell: Well, the only thing I would --

Sonia Sotomayor: It's rare under the Fourteenth Amendment.

Jonathan F. Mitchell: Oh, of course, it's rare. This is -- this is a one-off situation.

And, Your Honor, the only thing I'm --

Sonia Sotomayor: Well, it is one-off.

I don't disagree with you.

But it's not with  -- with respect to how we define self -executing.

Jonathan F. Mitchell: We're not asking this Court to redefine the concept of non-self-execution.

We were careful in our brief not to rely on that phrase. And Griffin's Case doesn't  --

Sonia Sotomayor: Right, you are, because it's not.

Jonathan F. Mitchell: That's right.

Sonia Sotomayor: All right.

Jonathan F. Mitchell: And Griffin's Case --

Sonia Sotomayor: So now the question is a very different one --

Jonathan F. Mitchell: Mm-hmm.

Sonia Sotomayor: -- in my mind.

I understand you're relying on Griffin.

Let's just be very clear.

Jonathan F. Mitchell: Right.

Sonia Sotomayor: Griffin was not a precedential Supreme Court decision.

Jonathan F. Mitchell: That's correct.

Sonia Sotomayor: All right.

It was a circuit court decision by a justice who, when he becomes a justice, writes in the Davis case, he assumed that Jefferson Davis would be ineligible to hold any office, particularly the presidency, and treated -- and this is his words --

Jonathan F. Mitchell: Mm-hmm.

Sonia Sotomayor: -- Section 3 as executing itself, needing no legislation o n 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.

Jonathan F. Mitchell: But the key point with Griffin's Case and why it's an important precedent, despite everything Your Honor said, it is not a precedent 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 for Section 3.

Sonia Sotomayor: Then did away with it later.

Jonathan F. Mitchell: It did away with it later. But, as --

Sonia Sotomayor: But -- but 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 -- and very briefly, what sense does it say that states can't enforce Section 3 against their own officials?

Jonathan F. Mitchell: Be  --

Sonia Sotomayor: And I think, logically, those are two separate issues in my mind:  Can states enforce the Insurrection Clause against their own office holders, or can they enforce it against federal officials, or can they enforce it against the president?  Those are all three different questions in my mind.

Jonathan F. Mitchell: And the -- 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 through implementing legislation.

Sonia Sotomayor: 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?

Jonathan F. Mitchell: Because Congress relied on Griffin's Case when it enacted the Enforcement Act of 1870 and established the --

Elena Kagan: So, Mr. Mitchell, if I may interrupt just to clarify, I mean, this sounds like your reply brief, where it sounds like you're not making a constitutional argument, you're really making a statutory preemption argument.

And --

Jonathan F. Mitchell: Right.

Elena Kagan: -- is that -- is that what you're doing here?  You're not saying that the Constitution gives you this rule.

It's the kind of combination of Griffin's Case plus the way Congress acted after Griffin's Case  --

Jonathan F. Mitchell: Yes.

Elena Kagan: -- that gives you the rule?

Jonathan F. Mitchell: That's exactly right, Justice Kagan, because we have implementing legislation, Congress took up the invitation provided by Griffin's Case and established writs of quo warranto in the 1870 Enforcement Act, later repealed them. 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, the repeal of the quo warranto provisions in 1948, all of those were made with Griffin's Case as the backdrop.

The under  --

Elena Kagan: I  --please.

Jonathan F. Mitchell: Well, the understanding was that these congressionally es tablished remedies would be exclusive of state court remedies.

So there's not an express statement of preemption in these statutes, but there didn't need to be because Griffin's Case provided the backdrop.

Elena Kagan: And if I could just understand the argument a little bit better, suppose that we took all of that way away.

You know, suppose there were no Griffin's Case and there were no subsequent congressional enactment.

What do you then think the rule would be?

Jonathan F. Mitchell: So in just as a matter of first principles without Griffin's Case, it's a much harder argument for us to make because, normally, I mean, every other provision of the Fourteenth Amendment has been treated as self-executing. What we would argue in the hypothetical that Your Honor has suggested is that there are practical considerations unique to Section 3 that counsel in favor of a rule similar to what Chief Justice Chase spelled out in Griffin's Case and it goes to I think the policy concerns he talks about, where this was a case -- Griffin's Case involved a convicted criminal who was seeking a writ of habeas corpus on the ground that the judge who tried his case was an insurrectionist disqualified under Section 3, and Chief Justice Chase realizes that 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 is an insurrectionist or arguably an insurrectionist under Section 3, and that was  --

Amy Coney Barrett: Well, why do you need those consequential concerns, though?  I mean, it kind of seems to me that what Justice Kagan  is getting at is why don't you have an argument that the Constitution of its own force, that Section 3 of its own force, preempts the state's ability not  --not necessarily, I think, not, to enforce Section 3 against its own officers but against federal officers, like in a Tarble's Case kind of way.

Jonathan F. Mitchell: So there could also 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 for Section 3 specific to federal officers. We could rely on precedents such as McClung that says that state courts lack the authority to issue mandamus relief against federal officials and extend that principle here.

Amy Coney Barrett: Well, why aren't you making those arguments?

Jonathan F. Mitchell: Because that doesn't get us -- that -- Griffin's Case --

Amy Coney Barrett: That only gets you out of state court, it doesn't get you out of federal court?

Jonathan F. Mitchell: Right.

And also the holding of Griffin's Case went well beyond that because Chief Justice Chase said in this opinion, which again provided the backdrop for the congressional 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 their legislative powers.

Neil Gorsuch: I --

Amy Coney Barrett: But your argument's --

Neil Gorsuch: Please go ahead.

Amy Coney Barrett: I was just going to add one last thing.

I think your argument's a little broader than that because 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.

Jonathan F. Mitchell: No, I don't agree with that, Justice Barrett.

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. So, 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 congruence and proportionality under this Court's precedents.

Samuel A. Alito, Jr.: Well, why would that be an important  --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.

Jonathan F. Mitchell: I think the answer to your question, Justice Alito, depends on how you interpret the word "enforce" in Section 5.

And some members of this Court, such as Justice Scalia, thought that "enforce" means you  can do nothing more than enact legislation that mirrors the Fourteenth Amendment's self-executing requirements and you can't go an inch beyond that.

That's not the current jurisprudence of this Court --

Samuel A. Alito, Jr.: No.

Well, all right.

You have --

Jonathan F. Mitchell: -- that allow --

Samuel A. Alito, Jr.: -- to decide whether it's congruent and proportional.

Jonathan F. Mitchell: Right.

Samuel A. Alito, Jr.: And we would get into the question of whether that would be congruent and proportional. Well, let me shift gear a little bit.

I -- I take you to  --to argue, and I think this is right, that the term "self-executing" is a misnomer as applied here.

Jonathan F. Mitchell: Yes, it is.

Samuel A. Alito, Jr.: 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.

Jonathan F. Mitchell: No, that's not the issue here.

And sometimes the phrase "self-executing" is used that way.

The only thing I would add is sometimes it's used in a different sense.

With self-executing treaties or non-self-executing treaties, the issue is whether that treaty has any force as domestic law whatsoever.

Samuel A. Alito, Jr.: Right.

Right.

Well, I don't see what is gained by using this term which is used in different contexts rather than directly addressing what's involved here, which is the question of who can enforce Section 3 with respect to a presidential candidate.

Jonathan F. Mitchell: Mm-hmm.

Samuel A. Alito, Jr.: 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  -- on collateral estoppel, that there's non-mutual collateral estoppel against former President Trump and so the decision of the Colorado Supreme Court could effectively decide this question for many other states, perhaps all other states? Could it not lead to that consequence?

Jonathan F. Mitchell: I don't think so because Colorado law does not recognize non-mutual collateral estoppel.

And I believe the preclusive effect of the decision would be determined by Colorado law rather than the law of another state. But I think your question, Justice Alito, gives rise to an even greater concern because, if this decision does not have preclusive 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.

Samuel A. Alito, Jr.: Yeah, exactly.

So this -- in this decision, the -- 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 --

Jonathan F. Mitchell: Mm-hmm.

Samuel A. Alito, Jr.: -- who testified about the meaning of certain words and phrases to people who communicate wit h and among extremists, right?

Jonathan F. Mitchell: Yes.

Samuel A. Alito, Jr.: Another -- another state court could reach an opposite conclusion on both of those questions.

Jonathan F. Mitchell: Certainly.

Other states could conclude that the January 6th report is inadmissible hearsay.

They might also conclude that statements within the January 6th report were hearsay even if the report itself is not.

And they could certainly reach a different conclusion with respect to the expert testimony of Professor Simi.

Perhaps in another state, we would have time to produce our own sociology expert who would contradict Professor Simi.

Samuel A. Alito, Jr.: Now should  -- should these considerations be dismissed as simply consequentialist arguments, or do they support a structural argument that supports the position that you're taking here?

Jonathan F. Mitchell: I think they all mutually reinforce each other.

We have an argument, we believe, that is sufficient to dispose of this case just based on the meaning of "officer of the United States," as well as the argument we're making based on Term Limits, but all of the consequentialist considerations that Your Honor has suggested are additional reasons to reverse the Colorado Supreme Court, although we don't think it's necessary to get into consequences because the law is clearly on our side.

Sonia Sotomayor: Can I  --you keep saying Term Limits.

There are other presidential qualifications in the Constitution, age.

Jonathan F. Mitchell: Yes.

Sonia Sotomayor: Citizenship.

There's a separate amendment, the Twenty-Second Amendment, that doesn't permit anyone to run for a second term. We have a history of states disqualifying -- 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.

Jonathan F. Mitchell: Right.

Sonia Sotomayor: Is -- are your arguments limited to Section 3?

Jonathan F. Mitchell: 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 in the Constitution.

Now the hypo  --

Sonia Sotomayor: So you want us to say -- I'm wondering why the Term Limits qualification is important to you.

Jonathan F. Mitchell: Because it  --

Sonia Sotomayor: Are you setting up so that if some president runs for a third term, that a state can't disqualify him from the ballot?

Jonathan F. Mitchell: Of course, a state can disqualify him from the ballot because that is a qualification that is categorical.

It's not defeasible by Congress.

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 goes --

Sonia Sotomayor: The same if they're under age when elected and the same if they're not a U.S. citizen.

Jonathan F. Mitchell: 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 Day.

Sonia Sotomayor: Well, then that would come up --

Jonathan F. Mitchell: A state could not --

Sonia Sotomayor: -- 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  --

Jonathan F. Mitchell: You're  --

Sonia Sotomayor: -- is your argument based on?

Jonathan F. Mitchell: You're changing --

Sonia Sotomayor: I'm just confused.

Jonathan F. Mitchell: Okay.

With respect to the -- maybe I'll start with the age example.

Sonia Sotomayor: Mm-hmm.

Jonathan F. Mitchell: 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 because 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  --

Sonia Sotomayor: Now I understand.

Elena Kagan: So what -- what  --

John G. Roberts, Jr.: Now just  --just a point of clarification so we're all on the same page. When you say "Term Limits," you mean our decision in the Term Limits case  --

Jonathan F. Mitchell: Yes.

I'm sorry.

John G. Roberts, Jr.: -- not the constitutional provision governing term limits?

Jonathan F. Mitchell: Yes.

U.S. Term Limits against Thornton.

Maybe I should call it Thornton instead of Term Limits.

John G. Roberts, Jr.: That would be easier.

Jonathan F. Mitchell: I'm sorry.

Ketanji Brown Jackson: And does it have some --

Sonia Sotomayor: I  --I was confused.

Ketanji Brown Jackson: So does it have something to do with the fact that the particular circumstance that you're talking about can change?  Is that what you mean?  I'm trying to understand  --

Jonathan F. Mitchell: Yeah.

Ketanji Brown Jackson: -- the distinction between the provision in the Constitution that relates to disqualification on the basis of insurrection behavior --

Jonathan F. Mitchell: Mm-hmm.

Ketanji Brown Jackson: -- and these other provisions that Justice Sotomayor points out.

They all seem to me to be extant constitutional requirements.

So you -- but you're drawing a distinction.

Jonathan F. Mitchell: Right.

I'm drawing a distinction because some of them are categorical, such as --

Ketanji Brown Jackson: What do you mean by "categorical"?  Whether or not you are an insurrectionist is or is not categorical?

Jonathan F. Mitchell: It is not categorical because Congress  --

Ketanji Brown Jackson: Because?

Jonathan F. Mitchell: --because Congress can lift the disability by a two-thirds vote.

And there is --

Ketanji Brown Jackson: But  --but why does -- 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?

Jonathan F. Mitchell: Because 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  --and a court that is saying that 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.

Ketanji Brown Jackson: But that's by virtue of the "hold," right, "hold office."  This is  --

Jonathan F. Mitchell: Correct.

Yes.

Ketanji Brown Jackson: Okay.

Jonathan F. Mitchell: Section 3 bans him only from holding office.

It does not --

Ketanji Brown Jackson: All right.

Can I ask you --I'm just -- now that I have the floor --

Jonathan F. Mitchell: Yes.

Ketanji Brown Jackson: -- can I ask you to address your first argument, which is the office/officer point?

Elena Kagan: Could  --could --

Ketanji Brown Jackson: Oh, sorry.

John G. Roberts, Jr.: Yeah, why don't we --

Elena Kagan: -- could we --

Ketanji Brown Jackson: Oh.

Elena Kagan: Is that okay if we do this and then we go to that?

Ketanji Brown Jackson: Sure.

Sure, sure, sure.

Elena Kagan: You know, but --

Ketanji Brown Jackson: Go ahead.

Elena Kagan: Will there be an opportunity to do "officer" stuff, or should we  --

John G. Roberts, Jr.: Absolutely. Absolutely. (Laughter.)

Elena Kagan: I just want to understand. So, on -- on -- on this theory, what is the sum total of ways that the  -- that Section 3 can be enforced, that -- that -- that -- that -- that some --

Jonathan F. Mitchell: Yeah.

Elena Kagan: -- that somebody out there can say, yes, there has been a former president who engaged or led or participated in an insurrection and so should be disqualified from office, putting aside the officer argument --

Jonathan F. Mitchell: Right.

Elena Kagan: -- what is the sum total of ways that that enforcement can happen?

Jonathan F. Mitchell: So the answer to that question is going to depend on what Your Honor thinks of Griffin's Case.

So, 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.

So Congress could reinstate the quo warranto provisions that they initially had in the 1870 --

Elena Kagan: Is that your position?

Jonathan F. Mitchell: Yes, because we believe Griffin's Case is correctly decided and should be followed  --

Elena Kagan: And how does that fit with -- a lot of the  -- the --the answers to the questions that we've been giving, you said, well, Congress has to have the ability by a two-thirds vote to lift the disqualification.

Jonathan F. Mitchell: Right.

Elena Kagan: But so too I -- I would think that that provision would -- would  --would be in some tension with what you just said --

Jonathan F. Mitchell: There is some, yeah.

Elena Kagan: -- 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.

Jonathan F. Mitchell: Yeah, there certainly is some tension, Justice Kagan, and some commentators have pointed this out.

Professor Baude and Professor Paulson criticized Griffin's Case very sharply.

Elena Kagan: Then I must be right. (Laughter.)

Jonathan F. Mitchell: Well, we don't think it's -- we don't think this problem is fatal because, to us, the two-thirds provision that allows Congress to lift a disability is something akin to a pardon power, where Congress, through enforcement legislation, creates a mechanism by which the insurrectionist issue is to be determined 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 qualifications of their members, or 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 had the authority to bring a quo warranto writ against an incumbent official and seek his ouster from office under Section 3, but it was still subject to that amnesty provision in Section 3 of the Fourteenth Amendment. So we do acknowledge the tension, but we don't think that's an insurmountable obstacle in the case.

Samuel A. Alito, Jr.: I don't even see why there's -- why there's a tension.

If you analogize the -- 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 a 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.

Jonathan F. Mitchell: That's right.

Samuel A. Alito, Jr.: Right?

Jonathan F. Mitchell: Yes.

Samuel A. Alito, Jr.: 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 or the -- should be lifted or the pardon should be granted.

Jonathan F. Mitchell: That's right.

I mean, if -- again, if the Court accepts the holding of Griffin's Case, that's exactly the regime that we would have, like the Court described.

Samuel A. Alito, Jr.: Yeah.

I don't see there's a tension.

Elena Kagan: But I guess I don't --

Samuel A. Alito, Jr.: But, also, there's a limit on what one can infer from the mere fact that Congress can lift the disqualification.

You can't infer from that that it is impermissible to have a prior determination that the person did engage in the insurrection.

You can't make that inference.

Jonathan F. Mitchell: Okay.

Samuel A. Alito, Jr.: It's not logical.

Elena Kagan: Well, but I think --

Ketanji Brown Jackson: Yet isn't that what you're doing?

Elena Kagan: -- what's -- what's  -- what's -- what's -- what's in tension is that you would have the exact same actor and say, look, that actor can lift --

Jonathan F. Mitchell: Right.

Elena Kagan: -- 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 can do that by far less than two-thirds.

It can do that just by a simple majority of one House.

Jonathan F. Mitchell: Or  --or it could do that by doing nothing at all if  --if the holding of Griffin's Case is correct because just --

Elena Kagan: Yes, exactly.

Jonathan F. Mitchell: -- congressional inaction would --

Elena Kagan: But that means that there will --

Jonathan F. Mitchell: -- effectively act as a --

Elena Kagan: The only thing it takes --

Jonathan F. Mitchell: Yeah.

Elena Kagan: -- to have no action  --

Jonathan F. Mitchell: Right.

Elena Kagan: -- is  --you know, is, you know, half plus one saying we don't feel like it.

Jonathan F. Mitchell: But that's why we tried to characterize our Griffin's Case argument the way we did where we rely on preemption doctrines as well. So we have --

Brett M. Kavanaugh: Well, don't  --don't you think  --

John G. Roberts, Jr.: Why don't we  --

Brett M. Kavanaugh: -- Griffin's Case is also relevant to trying to figure out what the original public meaning of Section 3 of the Fourteenth Amendment is?  It's by the Chief Justice of the United States a year after the Fourteenth Amendment.

That seems to me --

Jonathan F. Mitchell: Yes.

Brett M. Kavanaugh: -- highly probative of what the meaning or understanding of that language, otherwise elusive language, is.

Jonathan F. Mitchell: I do think it's probative, Justice Kavanaugh.

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 very hard in our briefing.

John G. Roberts, Jr.: Thank you.

Jonathan F. Mitchell: But I think Your Honor is right.

This is --

John G. Roberts, Jr.: Why don't you finish your sentence and then we'll move on.

Jonathan F. Mitchell: Just it is  -- it is relevant and probative for sure, but I think there is other evidence too that might perhaps undercut the usefulness of trying to characterize Griffin's Case as completely emblematic of the original understanding.

John G. Roberts, Jr.: Then why don't we move on to the officer point.

Jonathan F. Mitchell: Certainly.

John G. Roberts, Jr.: And, Justice Jackson, I think you --

Ketanji Brown Jackson: Yes.

So I had a question about it because you're making a textualist argument.

Jonathan F. Mitchell: Mm-hmm.

Ketanji Brown Jackson: And as I look at Section 3, I see two parts of the first sentence of Section 3.

Jonathan F. Mitchell: Mm-hmm.

Ketanji Brown Jackson: 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?

Jonathan F. Mitchell: Yes, for sure.

Ketanji Brown Jackson: Okay.

So 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  --

Jonathan F. Mitchell: Mm-hmm.

Ketanji Brown Jackson: -- and that the person -- a person who previously took the presidential oath is not subject to disqualification?

Jonathan F. Mitchell: We are arguing both, Your Honor.

Ketanji Brown Jackson: I don't see that in your brief.

Jonathan F. Mitchell: Well --

Ketanji Brown Jackson: I see a lot of focus  on the second but not on the first.

Jonathan F. Mitchell: -- there is definitely more focus on the second, and we acknowledge that we have a somewhat heavier lift on the first point just because --

Ketanji Brown Jackson: Why?  It seems to me that you have a list and president is not on it.

Jonathan F. Mitchell: That -- that's certainly an argument in our favor, but there are also  -- with respect to "officer of the United States," that's used repeatedly in the Constitution and the Commissions Clause and the Appointments Clause and also in the Impeachment Clause, and every time it appears, it's used in a way that clearly excludes the president.

Ketanji Brown Jackson: No, I understand.

Jonathan F. Mitchell: So we don't  --

Ketanji Brown Jackson: But that's the second argument.

Jonathan F. Mitchell: That is.

And the --

Ketanji Brown Jackson: So the first argument --

Jonathan F. Mitchell: Mm-h mm.

Ketanji Brown Jackson: -- is we have a list of offices --

Jonathan F. Mitchell: Yes.

Ketanji Brown Jackson: -- that a person is barred from holding, right  --

Jonathan F. Mitchell: Yes.

Ketanji Brown Jackson: -- under your theory or under the  --the language of --

Jonathan F. Mitchell: Mm-hmm.

Ketanji Brown Jackson: -- and we see it begins with senator, representative, elector --

Jonathan F. Mitchell: Elector.

Ketanji Brown Jackson: -- of the president and vice president, and all other civil or military officers  -- offices.

Jonathan F. Mitchell: Offices under the United States --

Ketanji Brown Jackson: Offices under the United States.

Jonathan F. Mitchell: -- is how it's phrased.

Ketanji Brown Jackson: But the word "president or vice president" does not in it appear -- not appear specifically  --

Jonathan F. Mitchell: That's right.

Ketanji Brown Jackson: -- in that list.

So I guess I'm trying to understand, are you giving up that argument?

Jonathan F. Mitchell: No.

Ketanji Brown Jackson: And, if so, why?

Jonathan F. Mitchell: No, we're not giving it up at all.

You're right, the president and the vice president are not specifically listed, but the Anderson litigants claim that they are encompassed within the meaning of the phrase "office under the United States."  And that  --

Ketanji Brown Jackson: And do you agree th at -- that the Framers would have put such a high and significant and important office, sort of smuggled it in through that catch -all phrase?

Jonathan F. Mitchell: No, we don't agree at all. That's why we're still making the argument that the presidency is excluded from the covered offices that are listed at the beginning of Section 3.

Sonia Sotomayor: I  --I'm sorry, your brief says you didn't take a position on that point.

Jonathan F. Mitchell: I'm sorry.

Sonia Sotomayor: And your brief said -- I don't have the  -- the cite, I -- I apologize --

Jonathan F. Mitchell: Okay.

Sonia Sotomayor: -- you don't affirmatively argue that point I think is what your brief said.

Jonathan F. Mitchell: In the blue brief?

Sonia Sotomayor: Yes.

Jonathan F. Mitchell: Well, we certainly argued it in the reply brief and I'll have to look at what we -- how we phrased it.

But we did point out in our opening brief that there are potential issues if this Court were to rule on "office under" because that phrase appears in other parts of the Constitution, including the Emoluments Clause, the Impeachment Disqualification Clause, and it would --

Ketanji Brown Jackson: Would we necessarily have to say -- I mean, I thought -- 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.

Jonathan F. Mitchell: Perhaps, but there are al so 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 somewhat 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 where they say, if this Court were to say the presidency is an excluded office under the United States, that could imply, for example, the president is not covered by the Emoluments --

Neil Gorsuch: Mr.

--Mr. Mitchell --

Jonathan F. Mitchell: Yes.

Neil Gorsuch: -- stepping back on this --

Jonathan F. Mitchell: Mm-hmm.

Neil Gorsuch: -- a --a lot hinges on the difference between  -- in your argument between the term "office" and "officer."

Jonathan F. Mitchell: Yes.

Neil Gorsuch: And I -- I -- I guess I'm wondering what theory do you have from an original understanding or a textualist perspective --

Jonathan F. Mitchell: Mm-hmm.

Neil Gorsuch: -- why those two terms so closely related would carry such different weight?

Jonathan F. Mitchell: 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 tempore.

They're described as officers in Article I 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 both the presidency and the vice presidency. So they're officers, but they're not offices under the United States because of the Incompatibility Clause, which says that if you're a member of Congress, you cannot simultaneously hold an office under the United States.

So that provision of the Constitution clearly demonstrates that --

Neil Gorsuch: I -- I --

Jonathan F. Mitchell: -- members of Congress can't hold offices.

Neil Gorsuch: -- I --I appreciate that response.

Is -- is there anything in the original drafting, history, discussion that you think illuminates why that distinction would carry such profound weight?

Jonathan F. Mitchell: Not -- not of which we're aware.

So these are textual inferences that we're drawing --

Neil Gorsuch: Yeah.

Jonathan F. Mitchell: -- from constitutional structure, intratextualist analysis.

Neil Gorsuch: Yeah.

Jonathan F. Mitchell: 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 drafts that were proposed.

Some people wanted to ban all insurrectionists from holding office regardless of whether they previously swore an oath.

Some people wanted to go further and ban them even from voting.

John G. Roberts, Jr.: Thank you.

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?

Jonathan F. Mitchell: No, we don't know why.

It looks like it was done as part of a reorganization of the U.S. Code, so it doesn't appear there was any policy motivation behind that decision.

I think a lot of things got repealed during the 1948 decisions that were made.

John G. Roberts, Jr.: Okay. Justice Thomas, anything further? Justice Alito?

Samuel A. Alito, Jr.: Is there any history of states using Section 3 as a way to bar federal officeholders?

Jonathan F. Mitchell: Not that I'm aware, Justice Alito, because of Griffin's Case.

I mean, Griffin's Case has been the law -- and I shouldn't say that it's been the law because it was just a circuit court decision, but that has been the settled understanding of Section 3 since 1870 when it was decided.

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: I just 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?

Jonathan F. Mitchell: Yeah, I would say it 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.

Sonia Sotomayor: Ah.

Jonathan F. Mitchell: It has fewer implications for other constitutional --

Sonia Sotomayor: A bit of a gerrymandered rule, isn't it, designed to benefit only your client?

Jonathan F. Mitchell: I certainly wouldn't call it gerrymandered.

That implies nefarious intent.

We're --

Sonia Sotomayor: Well, that you didn't make it up.

I know some scholars have been discussing it.

But just so we're clear, under that reading,  only --only the Petitioner is disqualified because virtually every other president except Washington --

Jonathan F. Mitchell: Mm-hmm.

Sonia Sotomayor: -- has taken an oath to support the Constitution, correct?

Jonathan F. Mitchell: That's right.

Every president  --to our knowledge, every other president -- John Adams might also be excluded because he took the oath as a vice president, which is not an officer -- but, yes, President Biden would certainly be covered.

He took the oath as a member of Congress. And that's true of every previous president.

Sonia Sotomayor: 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?

Jonathan F. Mitchell: That would extend to every presidential candidate  --

Sonia Sotomayor: Exactly.

Jonathan F. Mitchell: -- not just our client. That's correct.

Sonia Sotomayor: Not just to yours.

Jonathan F. Mitchell: Yes.

Sonia Sotomayor: Okay.

Thank you.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: And if I could just understand, I mean, given that you say you don't have a lot of evidence that the founding generation -- or the generation that we're looking at is really thinking about "office" versus "officer of the United States," I mean, it  -- it --it would suggest that we should ask what -- is that rule a sensible one?  You know, if they had thought about it, what reason would they have given for that rule? And it does seem as though there  -- there's no particular reason, and you can think of lots of reasons for the contrary --

Jonathan F. Mitchell: Right.

Elena Kagan: -- 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?

Jonathan F. Mitchell: Yeah.

I don't think there is a good rationale given that this was compromise 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.

In a compromise, everyone goes away miserable. But this was the text that was settled upon.

And it does seem odd that President Trump would fall through the cracks in a sense, but if "officer of the United States" means appointed s, there's just no way he can be covered under Section 3.

The Court would have to reject our officer argument to get to that point.

Elena Kagan: And 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?

Jonathan F. Mitchell: I think that's an even tougher arg ument for us to make as a policy matter because one would think, of all offices, the presidency would be the one you'd want to keep out the Confederate insurrectionists.

That's the commander-in-chief of the Army.

So, again, that's why we're leaning more on the "officer of" argument than the "office under." We're not conceding "office under," but we definitely have the stronger textual case and structural case on "officer of the United States."

Elena Kagan: Thank you.

Jonathan F. Mitchell: Thanks.

John G. Roberts, Jr.: Justice Gorsuch?

Neil Gorsuch: Do you 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?

Jonathan F. Mitchell: Yeah.

So the way -- let's start with --

Neil Gorsuch: But why  --

Jonathan F. Mitchell: Well, I'll start with the Commissions Clause.

Neil Gorsuch: The ball has been bouncing  --

Jonathan F. Mitchell: Yeah.

Neil Gorsuch: -- on that back and forth, and I wanted to see where you landed today.

Jonathan F. Mitchell: There are three textual inferences that could be drawn from each of those provisions Your Honor just mentioned, but the Commissions Clause, I think, is the strongest because it says "the president shall," you know, commission all the officers 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 one of the first problems. I think the Anderson litigants  are trying to say, you know, there's somehow an implied exception there because the president obviously can't commission himself, so we should construe that to mean all officers of the United States besides the president.

But you also have members of Congress who are not commissioned by the president, and that's because they're not officers of the United States. So the only sensible distinction that we can see, given the language of the Commissions Clause, is that 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 the vice president are listed separately from officers of the United States. And then, of course, the Appointments Clause, we know the president is not appointed pursuant to Article II.

Neither is the vice president.

Neither are members of Congress.

So they can't be officers either.

Neil Gorsuch: And how does Article I, Section 6, fit into this discussion?

Jonathan F. Mitchell: And this is about offi cers being in the line of succession?

Neil Gorsuch: Yes, exactly.

Jonathan F. Mitchell: Right.

So 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 are officers.

But they're not officers of the United States because they're not subject to impeachment, they're not commissioned by the president, and they're not appointed pursuant to Article II. 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 officeholders, which is what the Anderson litigants are cl aiming, but refers only to those who are appointed, not to those who are elected.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: Can I just 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.

Jonathan F. Mitchell: Mm-hmm.

Brett M. Kavanaugh: It's a pr ecedent, although not binding.

But your point then is it's reinforced because Congress itself relies on that precede nt in the Enforcement Act of 1870 and forms the backdrop against which Congress does legislate. And then, as Justice Alito says, the historical practice for 155 years has been that that's the way it's gone.

There hasn't -- there haven't been state attempts to enforce disqualification under Section 3 against federal officers in the years since.

Jonathan F. Mitchell: Right.

Brett M. Kavanaugh: So whether that's a Federalist 37 liquidation argument, it all reinforces what happened back in 1868, 1869, and 1870.

Jonathan F. Mitchell: Right.

Brett M. Kavanaugh: Do you want to add to that, alter that?

Jonathan F. Mitchell: No, I think that's exactly right.

And the last part you mentioned, Your Honor, is crucial to our argument, that Congress relied on Griffin's Case.

It provided the backdrop against which they legislated, which is why we should read these extant enforcement mechanisms  -- and, right now, the only one left is the federal insurrection statute, 2383  --as exclusive of state court remedies.

It's a  -- it's a form of implied preemption, almost Sea Clammers implicit preemption of other remedies, because Congress made these decisions in explicit reliance on Griffin's Case.

Brett M. Kavanaugh: And if we agree with you on Griffin's Case and what you've elaborated on there, that's the end of the case, right?

Jonathan F. Mitchell: It should be, yes, unless Congress decides to enact a statute, which we can't --

Brett M. Kavanaugh: A new  --

Jonathan F. Mitchell: -- rule out the possibility.

Brett M. Kavanaugh: -- a new statute in addition to 2383.

And just to be clear, under 2383, you agree that someone could be prosecuted for insurrection by federal prosecutors and, if convicted, could be or shall be disqualified then from office?

Jonathan F. Mitchell: Yes.

But the only caveat that I would add is that 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 2383.

Brett M. Kavanaugh: Understood.

Asking --

Jonathan F. Mitchell: Yes.

Brett M. Kavanaugh: -- the question about the theory of 2383.

Thank you.

Jonathan F. Mitchell: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: So Griffin's Case was a collateral proceeding, so it's habeas relief.

Jonathan F. Mitchell: Yes.

Amy Coney Barrett: Could Griffin have -- so even if Section 3 is not a basis for collateral relief in habeas, which was new at the time, could Griffin have raised at his trial or in direct appeal the argument that Sheffey, Judge Sheffey, you know, you can't legitimately sit  -- or constitutionally sit on my case because you're an insurrectionist and you're disqualified?  Could he have won then?

Jonathan F. Mitchell: No.

Amy Coney Barrett: Why?

Jonathan F. Mitchell: Not if  --not if Griffin's Case is correct.

So a court would have to reject the rationale of Griffin's Case to accept what Your Honor was suggesting.

Amy Coney Barrett: Well, why?  Like I said, Griffin's Case -- I mean, I think there's some language that might be a little bit broad --

Jonathan F. Mitchell: Mm-hmm.

Amy Coney Barrett: -- but, at bottom, Griffin's Case is about a collateral habeas proceeding.

And Griffin had brought his case after the fact.

He made it a cause of action. Why wouldn't it work in a trial for him to challenge Sheffey's constitutional ability to adjudicate his case?

Jonathan F. Mitchell: But what Griffin's Case holds is that 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.

Amy Coney Barrett: Okay.

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 quo warranto provision that would allow a state or I guess it doesn't really matter for this purpose, even -- even a federal prosecutor, to bring such an action against him to remove him from office --

Jonathan F. Mitchell: Mm-hmm.

Amy Coney Barrett: --in a quo warranto way. Wouldn't that be in some tension with impeachment?  He would be extracted from office outside of the process of impeachment.

Couldn't then President Trump simply say, well, the only way to get me out of office is the impeachment process and not this quo warranto action?

Jonathan F. Mitchell: So I don't know how that would play out because the quo warranto actions that were brought that I'm aware of under the 1870 Enforcement Act were brought against state officials. And Your Honor's impeachment hypothetical would apply not only to the president but any federal --

Amy Coney Barrett: I know.

Jonathan F. Mitchell: -- officer of the United States.

Amy Coney Barrett: I know.

Jonathan F. Mitchell: 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 --

Amy Coney Barrett: Well, I don't think anybody did argue it.

I guess w hat I'm asking is, you know, you said it's Congress's exclusive province.

Jonathan F. Mitchell: Yes.

Amy Coney Barrett: 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 a provision that applied against federal officeholders that were covered by Section 3 as opposed to state ones?

Jonathan F. Mitchell: I believe they could.

The Impeachment Clause says that the president, the vice president, and also the 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. I mean, Congress can defund a position and effectively, it's not quite the same as formal removal, but the other relevant precedent is Stuart against Laird when the Jeffersonians repealed the Midnight Judges Act and abolished all of these positions for federal judges.

And some people thought that was unconstitutional because they thought the only way you could eliminate federal judges was through impeachment, but Chief Justice Marshall upheld that statute. So that to me is a relevant precedent showing that impeachment is not the only way to get rid of a fe deral official.

Amy Coney Barrett: Okay.

Let me ask one question, and this is just 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 or the preemption point but more to the question of what procedures he might have been entitled to.

You don't make the argument that he was entitled to any, nor did I see the argument that he had any kind of constitutionally protected right to ballot access so that he was, you know, constitutionally entitled to an opportunity to be heard. Is that right?

Jonathan F. Mitchell: We  --we made --

Amy Coney Barrett: He had no due process right?

Jonathan F. Mitchell: We made that argument below. We did not make that in our briefs to this Court for several reasons.

I mean, Your Honor's, I think, suggesting and this is correct that the proceedings below, to put it charitably, were highly irregular.

Amy Coney Barrett: Well, I wasn't suggesting that.

I was just asking --

Jonathan F. Mitchell: I'm sorry.

The question --

Amy Coney Barrett: Yeah.

Jonathan F. Mitchell: -- seems to suggest that there might be due process issues.

But we didn't develop that argument in this Court for several issues. Winning on due process doesn't really do as much for our client as the other arguments that we've 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 b allot.

Amy Coney Barrett: Okay.

Thank you.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: Going back to whether the presidency is one of the barred offices, I -- I guess I'm a little surprised at your response to Justice Kagan because I thought that the history of the Fourteenth 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. 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 their focus was not about the presidency, I just don't understand why you're giving that argument up.

Jonathan F. Mitchell: There  --there is some evidence to suggest that, Justice Jackson, but --

Ketanji Brown Jackson: Is there any evidence to suggest that the presidency was what they were focused on?

Jonathan F. Mitchell: 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 presidency --

Ketanji Brown Jackson: But it wasn't the final --

Jonathan F. Mitchell: -- as an office.

Ketanji Brown Jackson: -- but it wasn't the final enactment.

So where do you  --

Jonathan F. Mitchell: It wasn't the final  -- it wasn't --

Ketanji Brown Jackson: Right.

Jonathan F. Mitchell: I'm sorry.

It wasn't the final enactment, but it does show that there was some concern by some people about Confederate insurrectionists ascending to the presidency. And we didn't want to make a law office history type argument where you just look at the historical evidence and pick the evidence that we like and interpret it tangentially because the other side can come back with us and throw this countervailing evidence back in our face. So we wanted to focus more on the text of the Constitution because this was ultimately a compromise provision that was enacted in Section 3, and --

Ketanji Brown Jackson: All right.

Let me ask you another question --

Jonathan F. Mitchell: Mm-hmm.

Ketanji Brown Jackson: -- about the states because 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 mean, 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?

Jonathan F. Mitchell: I don't see how it could unless Congress were to enact a statute in response to this Court's decision.

Ketanji Brown Jackson: So your poi nt is that it would --we would have to say congressional enacting legislation is necessary for either state or federal enforcement?

Jonathan F. Mitchell: That's correct.

Ketanji Brown Jackson: All right.

Final question.

The Colorado Supreme Court concluded that the violent attempts of the Petitioner's 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 that they were not. So what is your position as to that?

Jonathan F. Mitchell: Oh, we  --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 be characterized as insurrection because he did not engage --

Ketanji Brown Jackson: All right.

So why would this not be an -- what is your argument that it's not -- your reply brief says that it wasn't because, I think, you say, it did not involve an organized attempt to overthrow the government.

So --

Jonathan F. Mitchell: That's o ne of many reasons. But, for an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence. And this riot  that occurred --

Ketanji Brown Jackson: So your point is that a chaotic effort to overthrow the government is not an insurrection?

Jonathan F. Mitchell: No, we didn't concede that it's an effort to overthrow the government either, Justice Jackson.

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 it did not qualify as insurrection as that term is used in Section 3 because --

Ketanji Brown Jackson: Thank you.

Jonathan F. Mitchell: Thanks.

John G. Roberts, Jr.: Thank you, counsel.

Jonathan F. Mitchell: Thank you.

John G. Roberts, Jr.: Mr. Murray.

Jason C. 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 an 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 rationale for such an exemption, and the Court should reject the -- 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.

The two phrases are two sides of the same coin, referring to any federal office or to anyone who holds one. President Trump's other arguments for reversal ignore the constitutional role of the states in running presidential elections.

Under Article II and the Tenth 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.

Clarence Thomas: Do you have contemporaneous examples -- and by contemporaneous, I mean shortly after the adoption of the Fourteenth Amendment  --where the states disqualified national candidates, not its own candidates, but national candidates?

Jason C. Murray: The only example I can think of, Justice Thomas, is the example of governor -- of -- of Congressman Christy, who was elected in Georgia in I believe 1868, and the governor of Georgia refused -- or  --or declined to certify the results of that election because Mr. Christy was disqualified. But I think it's 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 I and Article II powers to run elections.

Clarence Thomas: But it would seem that particularly after Reconstruction and after the Compromise of 1877 and du ring 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 it would seem -- that would suggest that there would at least be a few examples of national candidates being disqualified if your reading is correct.

Jason C. Murray: Well, there were certainly national candidates who were disqualified by Congress refusing to seat them.

Clarence Thomas: I understand that, but that's not this case.

I'm talking  --did states disqualify them?  That's what we're talking about here.

I understand Congress would not seat them.

Jason C. Murray: Other than the example I gave, no, but, again, Your Honor, that's not surprising because there wouldn't have been -- states certainly wouldn't have the authority to remove a sitting federal officer.

Clarence Thomas: So what's the purpose of the -- what was the purpose of the -- of Section 3? The states were sending people  --the concern was that the former 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?

Jason C. Murray: Well, 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 concerning that.

Clarence Thomas: I understand that.

I  --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 Foner or Foote, Shelby Foote, or McPherson, they all talk about, of course, the conflict after the Civil War, and there were 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 you give -- is do you have any examples of this?

Jason C. Murray: Many of those historians have filed briefs in our support in this case, making the point that the -- the -- the idea of the Fourteenth Amendme nt was that both states and the federal government would ensure rights and that if states failed to do so, the federal government certainly would also step in. But I think the reason why there aren't examples of states doing this is an idiosyncratic one of the fact that elections worked differently back then.

States have a background power under Article II and the Tenth 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 amn esty and these issues had become moot.

So I don't think the history tells us --

John G. Roberts, Jr.: I'd like to sort of look at Justice Thomas's question sort of from the 30,000-foot level.

I mean, the whole point of the Fourteenth Amendment was to restrict state power, right?  States shall not abridge privilege of immunity, they won't deprive people of property without due process, they won't deny equal protection.

And 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'd look for authorization for the states, including Confederate states, to enforce  -- implicitly authorized to enforce the presidential election process?  That -- that seems to be a position that is at  --at war with the whole thru st of the Fourteenth Amendment and very ahistorical.

Jason C. Murray: No, Your Honor.

First, we would locate the states' authority to run presidential elections not in the Fourteenth Amendment but in Article II.

And that power is nearly plenary to determine the means --

John G. Roberts, Jr.: Yeah, but you're relying on -- you have no reliance on Section 3, is that what you're saying?

Jason C. Murray: No, Your Honor.

Certainly, we have reliance on Section 3 insofar as Article II gives states this broad power to determine how their electors are selected, and that broad power implies the narrower power to enforce federal constitutional qualifications like  --

John G. Roberts, Jr.: Well, but the narrower power you're looking for is the power of disqualification, right?  That is a very specific power in the Fourteenth Amendment.

And you're saying that was implicitly extended to the states under a clause that doesn't address that at all?

Jason C. Murray: We would say that nothing in the Fourteenth 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 in Chiafalo, that power is nearly plenary unless something in the Constitution tells states they can't do it. And -- and the structure of the Fourteenth 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 Fourteenth Amendment.

And so it's hard to see why states wouldn't be similarly bound or at least authorized --

Brett M. Kavanaugh: But that's  -- that's a --

Elena Kagan: Well, just  --

Brett M. Kavanaugh: -- "greater includes the lesser" argument.

The  --the states have the power, the legislature has the power to choose electors.

Granted.

But just because there's one authorized means in the Constitution to a particular end does not mean that there's 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's just no  -- and Justice Thomas, there's no historical evidence to support kind of the theory of Section 3, nor the overall -- to explain the overall structure of -- of the Fourteenth Amendment.

Jason C. Murray: 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  -- I don't take it there's a great debate about whether or not 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 II power. I don't see why Section 3 should be treated any differently.

Section 3 speaks in the same mandatory terms.

Brett M. Kavanaugh: Well, 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 Fourteenth Amendment to say these are difficult questions and you look right at Section 5 of the Fourteenth Amendment, as the Chief Justice said, and that tells you Congress has the primary role here. I think what's different is  --is the processes, the definition, who decides questions really jump out at you when you look at Section 3.

Jason C. Murray: Cert  --

Brett M. Kavanaugh: Your response to that?

Jason C. Murray: Well, certainly, Justice Kavanaugh, there has to be some process for determining those questions, and then the question becomes, does anything in the Fourteenth 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.

And  --

Elena Kagan: But maybe put most boldly, I think that 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, you know, 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 that they have to be federal, national means. Why does --you know, 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, I mean, that seems quite extraordinary, doesn't it?

Jason C. Murray: No, Your Honor, because, ultimately, it's this Court that's going to decide that question of federal constitutional eligibility and settle the issue for the nation.

And, certainly, it's not unusual that questions of national importance come up through different states.

Elena Kagan: Well, I suppose this Court would be saying something along the lines of that a state has the power to do it.

But I guess I was -- I was asking you to go a little bit further in saying 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?

Jason C. Murray: Because Article II gives them the power to  -- 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, then it's 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  --

Amy Coney Barrett: Well, if we --

Jason C. Murray: -- in terms of how --

Amy Coney Barrett: 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 the ballot anyway but, I mean, really it's going to have, as Justice Kagan said, the effect of Colorado deciding.

And it's true, I just want to push back a little bit on well, it's 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 -- I -- I don't want to get into whether the --the record  -- I mean, maybe the record is great, but what if the record wasn't?  I mean, what if it wasn't a fulsome record?  What if, you know, 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? Why should clear error review apply and doesn't that buckle back into this point that Justice Kagan was making, you know, that  -- that we made with Mr. Mitchell too that it just doesn't seem like a state call?

Jason C. Murray: Three points, Your Honor.

The first is that ordinarily, of course this Court reviews factual findings for clear error but President Trump made the point in  -- in his reply brief that sometimes on constitutional questions that require a uniform resolution, this Court can do more, something more like a Bose Corp. Style independent review of  the factual record. And we would have no objection to that, given that the record here  -- really --really 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.

Amy Coney Barrett: But then that's saying that in this context, which is very high stakes, if we review the facts essentially de novo you want us all to just watch the video of the ellipse and then make a decision without any deference to or  guidance from lower court fact finding?  That's unusual.

Jason C. Murray: Well, ultimately President Trump himself urges this Court to decide the merits of his eligibility on the factual record here at 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 -- and  --and in particular, his own videotaped statements on the ellipse  --

Neil Gorsuch: Mr. Murray, just to circle back -- I'm sorry to interrupt.

But I wanted -- before we left it, I wanted to circle back to where Justice Kagan was. Do you agree that the state's powers here over its ballot for federal officer election have to come from some constitutional authority?

Jason C. Murray: Members of this Court have disagreed about that.

Neil Gorsuch: I'm asking you. (Laughter.)

Jason C. Murray: The  -- the majority of this Court has said that those powers come from Article II. But we think that the result is the same, whether the Court locates it in Article II or in a reserved power under the Tenth Amendment.

Neil Gorsuch: Okay.

But you accept that this Court has held, you're not contesting this or asking us to revisit that decision in Thornton or Term Limits or whatever you want to call it that has to come from some federal constitutional authority?

Jason C. Murray: No, we are not, Your Honor.

Neil Gorsuch: Okay.

And  -- and --and here we're not talking about the Qualifications Clause, right?  Nobody's talking about whether he's 35 years old or a natural born, whatever, right, not at issue, okay. We're talking about something under the Fourteenth Amendment and Section 3, so that's where you have to find your authority, right?

Jason C. Murray: We find our authority in Article II in state's plenary power to run their elections.

Neil Gorsuch: Federal election  --but this is for a federal office.

It has to come from the Constitution.

And you're seeking to enforce Section 3?

Jason C. Murray: 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 --

Neil Gorsuch: Could they do it without Section 3?  Could they disqualify somebody for -- you know, on whatever basis they wanted outside of the Qualifications Clause?

Jason C. Murray: That would run into Term Limits.

Neil Gorsuch: Yeah, I would think so. So it has to come back to Section 3.

And if that's true, how does that work given that Section 3 talks about holding office, not who may run for office.

It was a point Mr. Mitchell was making earlier and I just wanted to give you a chance to respond to it because it seems to me that  --that, you know, that you're asking to enforce in an election context a provision of the Constitution that speaks to holding an office.

So it's different than the Qualifications Clause, which is all about who can run and then serve, yeah.

Jason C. Murray: I -- I don't know that it is different.

Neil Gorsuch: Okay.

Jason C. Murray: Other qualifications for office similarly talk about eligibility for the office.

There's nothing unconstitutional about a 30-year-old trying to get on the ballot.

Neil Gorsuch: Except for this disability can be  removed, right, under Section 3. That's what's different about it.

So, thoughts on that?

Jason C. Murray: Well  --well, the fact that there's an extraordinary provision for removing the disability does not negate the fact that the disability exists today and it's existed since January 6th, 2021 when President Trump engaged in insurrection against the Constitution.

Neil Gorsuch: So were his actions after that date, before he left office, ultra vires, is that -- is that where your theory leads?

Jason C. Murray: Well, 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's at the very end where we would agree which is  --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's holding -- who's, in fact, holding the position.

Neil Gorsuch: All right.

But just circle back to where we started, right?  This is Section 3.

Your authority has to come from there. And it's about holding office and it's a particular kind of disability that can be removed by Congress and it's the only one like that, right?  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?

Jason C. Murray: The colloquy that my friend had with Justice Alito earlier, I think is illustrative here.

The fact that Congress has an extraordinary removal power does not negate that the disability exists today and exists indefinitely into the future, much like the fact that Congress -- that the president can pardon somebody for criminal convict ion doesn't make that conviction somehow -- somehow contingent. And -- 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 -- and the fact that Congress has a power to remove the disab ility doesn't negate the present qualification, nor does it implicitly 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 II.

Sonia Sotomayor: In fact, there was a -- a congressional action to permit confederate officers or people who supported the confederacy to hold office before the Fourteenth Amendment, correct?  So there must have been a thought that there was a  --a preexisting disqualification.

Jason C. Murray: That's absolutely right. There were a flood of amnesty requests, even before Section 3 went into  effect because everybody understood at the time that those people would be disqualified the moment that Section 3 was enacted forever, unless they received amnesty.

John G. Roberts, Jr.: Counsel, what do you do with the -- what would seem to me to be plain consequences of your position.

If  -- 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 of proof.

Some of them will have different  rules about evidence.

Maybe the Senate report won't be accepted.

In others because it's hearsay.

Maybe it's beyond a reasonable doubt, whatever. In very quick order, I would expect, although my predictions never have been correct -- (Laughter.)

John G. Roberts, Jr.: -- I would expect that, you know, a goodly 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.

It'll come down to just a handful of states that are going to decide the presidential election.

That's a pretty daunting consequence.

Jason C. Murray: Well, certainly, Your Honor, the fact that there are potential frivolous applications of a constitutional provision isn't a reason --

John G. Roberts, Jr.: Well now, 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, broad term.

And if there's 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 president did something as opposed to when somebody else did something else?  And what do we do?  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?

Jason C. Murray: There's a reason Section 3 has been dormant for 150 years.

And it's because we haven't seen anything like January 6th since reconstruction. Insurrection against the Constitution is something extraordinary.

And  --

John G. Roberts, Jr.: 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's 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'd have to develop rules for what constitutes an insurrection.

Jason C. Murray: Yes, Your Honor, just 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 Constitution itself.

Brett M. Kavanaugh: On -- on your point it that it's been dormant for 155 years, I think the other side would say the reason for that is Chief Justice Chase's opinion in 1869 in 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, in which Congress acts upon that understanding, which is followed -- and there's no history contrary in that period, as Justice Thomas pointed out, there's no history contrary in all the years leading up to this of states exercising such authority. I think the reason it's been dormant is because there's been a settled understanding that Chief Justice Chase, even if not right in every detail, was essentially right, and 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, a criminal statute.

But Congress could change it, but they have not, in the 155 years, in relevant respects for what you want here today, at least.

Jason C. Murray: No, Justice Kavanaugh.

The reason why it's 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'd like to address your point  --

Samuel A. Alito, Jr.: Well, you know, we didn't --

Sonia Sotomayor: Can I go to that point --

Samuel A. Alito, Jr.: After the  --

Sonia Sotomayor: Sorry.

John G. Roberts, Jr.: Justice Alito.

Samuel A. Alito, Jr.: I don't know how much we can infer from the fact that we haven't seen anything like this before and therefore conclude that we're -- we're not going to see something 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've had three.

So I don't know how much you can infer from that.

Jason C. Murray: 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 -- to disrupt a function mandated by the Twelfth Amendment and essential to constitutional transfer of presidential power.

Samuel A. Alito, Jr.: Well, let me ask you a question about whether the power that you've 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 the vote of a single state are going to vote.

And suppose that candidate A gets a 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. Do you think the state has that power?

Jason C. Murray: 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. And, certainly, as the  --

Samuel A. Alito, Jr.: Well, let's change it so that it's not after the election; it's three days before the election based on the fact that the polls in that state look bad.

Can they do it?

Jason C. Murray: I think they probably could under this Court's decision in Chiafalo, where this Court emphasized that, for much of American history, state legislatures picked their -- their own electors and assigned their own electors themselves.

But, of course, 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.

Samuel A. Alito, Jr.: Can I ask you again the question that Justice Gorsuch asked, and you -- to which you responded by citing the de facto officer doctrine.

But suppose we look at that going forw ard, 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 -- of the -- the president in question?

Jason C. Murray: I'm not sure that anything gives military officers the authority to adjudicate effectively the -- the -- the legality of the presidency.

Neil Gorsuch: Why  --why -- why  -- 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 is, in fact, disqualified, from that moment, why would anybody have to obey a direction from him?

Jason C. Murray: Well, ultimately, there still has to be 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 -- for removal or otherwise negating the authority of a sitting president.

Neil Gorsuch: Why?

Jason C. Murray: Well, the --

Neil Gorsuch: On what theory?  Because Section 3 speaks about disqualification from holding office.

You say he is disqualified from holding office from the moment  it happens.

Jason C. Murray: Correct.

But, nevertheless --

Neil Gorsuch: So  -- so it operates -- you say there's no  --no legislation necessary.

I thought that was the whole theory of your case.

And no procedure necessary  --it happens automatically.

Jason C. Murray: Well, certainly, you need a procedure in order to have any remedy to enforce the disqualification, which is different  --

Neil Gorsuch: I -- that's a whole separate question.

That's the de facto  -- doesn't work here.

Okay?  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 -- president, former president, in your view, would be free to act as he or she wishes without regard to that individual.

Jason C. Murray: I don't think so because I think, again, the  --

Neil Gorsuch: Why?

Jason C. Murray: --de facto officer doctrine would nevertheless come into play to say this is the --

Neil Gorsuch: No, de facto  -- that -- that doesn't work, Mr. Murray, because de facto officer is to ratify the conduct that's done afterwards and -- and insulate it 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 a 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?

Jason C. Murray: I'm imagining a situation where, for example, a former president was -- you know, a -- a president was elected and they were 25 and they were ineligible to hold office  --

Neil Gorsuch: No.

No.

Jason C. Murray: -- but, nevertheless, they were put into that office --

Neil Gorsuch: No.

No.

We're talking about Section 3.

Jason C. Murray: And  --

Neil Gorsuch: Please don't change the hypothetical, okay?

Jason C. Murray: I'm  --

Neil Gorsuch: Please don't change the hypothetical.

I know.

I like doing it too, but please don't do it, okay?

Jason C. Murray: Well, the -- the point I'm trying to make is  --

Neil Gorsuch: He's disqualified from the moment he committed an insurrection, whoever it is, which  --whichever party.

It  --that happens. Boom.

It happened. What would compel  --and I'm not going to say it again, so just try and answer the question. If you don't want to answer it, fair enough, we'll move on.

What would compel a lower official to obey an order from that individual?

Jason C. Murray: Because, ultimately, we have -- 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's the only way to validate that they don't have the ability to hold that office and should be removed.

Ketanji Brown Jackson: Mr. Murray, can I  -- oh. 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. And I guess I -- I didn't really understand your argument or your response to her about that.

Jason C. Murray: Well, certainly if Congress is concerned about uniformity, they can provide for legislation and they can preempt state legislation.

Ketanji Brown Jackson: Yes  --

Jason C. Murray: But  --

Ketanji Brown Jackson: -- but you say that's not necessary.

Jason C. Murray: But it's 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, an opportunity to present evidence --

Ketanji Brown Jackson: No, I understand  --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 saying you're eligible, you're not, on the basis of this kind of thing?

Jason C. Murray: Well, what they were concerned most about was ensuring that insurrectionists and rebels don't hold office.

And so once one understands the sort of imperative that 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 just by failing to pass enforcement legislation. Federalism creates redundancy.

And here the fact that states have the ability to enforce it as well, absent federal preemption, provides an additional layer of safeguards around what really Section 3  --

Ketanji Brown Jackson: Yeah, and I'll --

Jason C. Murray: -- supports.

Ketanji Brown Jackson: -- ask you about the history when I get a chance again.

Thank you.

John G. Roberts, Jr.: Thank you, cou nsel. Justice Thomas? Justice Alito?

Samuel A. Alito, Jr.: Suppose there's 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's in the best interests of the United States to provide funds or release funds so that they can be used by that -- 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?

Jason C. Murray: No, Your Honor.

This Court has never i nterpreted the aid and comfort language, which also is present in the Treason Clause, but commentators have suggested  --it's been rarely applied because treason prosecutions are so rare, but commentators have suggested that, first of all, that 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 intent standard would do a lot of work there because, 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 -- or to aid the enemies in their pursuit of war against the United States.

Samuel A. Alito, Jr.: 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?

Jason C. Murray: Ultimately, this Court would -- first of all, if there were deficiencies in the record, the Court could either refuse to hear the case or it could decide on the basis of deficiencies of the record.

Samuel A. Alito, Jr.: Well, would we have  to decide what is the appropriate rule of evidence that should be applied in this -- in this case?  Would we have to decide what is the appropriate standard of proof?  Would w e give any deference to these findings by state court judges, some of whom may be elected? Would we have to have our own trial?

Jason C. Murray: No, Your Honor.

This Court takes the evidentiary record as -- as it's given. And, here, we have an evidentiary record that all the parties agree  is sufficient for a decision in -- in this case. And then, as -- as I discussed earlier, there's a possibility of a Bose Corp. independent review of the facts, but, ultimately, what we have here is an insurrection that was incited in plain sight for all to see.

Samuel A. Alito, Jr.: Yeah, but you're really not answering my question.

It's not helpful if you don't do that. We have -- 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 in multiple states. Then what do we do?

Jason C. Murray: Well, first, this Court would set the legal standard, and then it would decide which view of the record was -- was correct, I think, under that -- if -- if this Court had two cases --

Samuel A. Alito, Jr.: Which view of -- which view of what record?

Jason C. Murray: If this Court  --

Samuel A. Alito, Jr.: Of which record?

Jason C. Murray: If this Court had two cases before it and both of the records were sufficient insofar as both sides had the opportunity to present their case and -- and the essential facts in the record that everyone agreed was sufficient for a decision, then this Court would have to look at the --the evidence  --the evidence presented and decide which  -- which holding was correct and then decide that issue for the country. And, certainly, here, when  -- when there is a complete record, lower courts then will be applying that decision and I think it's 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.

Samuel A. Alito, Jr.: Well, you had an expert -- just take  --let's just take that example -- an expert testify about the meaning of what President Trump said.

But do you  --do you think it's possible that a different state court would apply Daubert differently and say that this person should not be allowed to express an expert opinion on that question?  Do you think that's beyond the realm of imagination?

Jason C. Murray: Not  -- not at all, Your Honor. Two points on that.

Number one, President Trump didn't appeal the admission of t hat evidence in this case, but, number two, you know, the second point is that Professor Simi really  --he didn't opine on the meaning of President Trump's words. He opined on the effect that those words had on violent extremists, and the essence of his testimony was built around videotaped statements of President Trump himself encouraging, inciting, and praising political violence when --

Samuel A. Alito, Jr.: Well, I -- I'm not taking a position one way or the other about whether the expert's 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  --I'm not getting a whole lot of help from you about how this would not be an unmanageable situation.

Jason C. Murray: 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, then it would be reversible error for any other state to conclude otherwise on that question of federal law, or -- or, at the very least, this Court could address that when those issues come up, but it seems unlikely.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: There's two sides to -- to the other side's position.

The first is that it's 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 nobody -- even Congress can't do it because they need implementing legislation.

Address that argument.

Jason C. Murray: That  --that --

Sonia Sotomayor: 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 or what -- what not -- not then 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  -- see the candidate, et cetera.

So I don't know that legislation's necessary.

Jason C. Murray: And, certainly, there are historical examples of member -- members of Congress under their Article  --under Congress's Article I power to judge the qualifications of its members, of 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's 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 Sectio n 3 under the Electoral Count Reform Act. A number of the amicus briefs, such as those of Professor Ginsburg, Hassan, and Foley, have made the point that that is kind of a disenfranchisement and constitutional crisis in the making and is all the more reason  to address those issues now in a judicial process on a full evidentiary record so that everybody can have certainty on those issues before they go to the polls.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: Mr. Murray, you talked  -- you relied on the states' extensive powers under the Electors Clause.

You talked about the states having a role in enacting, you know, typical ballot access provisions. I -- I guess, you know, it strikes me that we've put some limits on that.

And I'll just give you Anderson versus Celebrezze as an example of that, where we said, in fact, states are limited in who they can take off a 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 in 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 a fortiori for the situation in this case?

Jason C. Murray: Well, certainly, constitutional principles like Section 3 apply to everybody, but in Celebrezze, the issue there was a First Amendment question.

And, certainly, there's no doubt that states' exercise of their power under Article II is constrained by First Amendment principles. And -- and in -- in that case, the -- 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 major parties had picked and it raised First Amendment problems.

Here, there's no real First Amendment problem and -- and a state is just trying to enforce an existing qualification that's baked into our constitutional fabric.

Elena Kagan: Yeah, I -- I guess, you know, it  -- it did come up in the First Amendment, but there's a broader principle there and it's 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's some broader principle about that there are certain national questions that -- that -- that  --that, you know, states -- where states are not the repository of authority.

And I took a lot -- First Amendment, not First Amendment -- a lot of Anderson's reasoning is really about that.

Like, what's a state doing deciding who gets to  -- who --other citizens get to vote for for president?

Jason C. Murray: Colorado is not deciding who other states get to vote for for president.

It's deciding how to assign its own electors under its Article II power.

And the Constitution grants them that broad power as  --

Elena Kagan: Well, but the effect of that is obvious, yes?

Jason C. Murray: 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 going to look into federal constitutional questions.

It's the sort of  -- even in this election cycle, there are -- there are candidates who are 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.

Elena Kagan: Thank you.

John G. Roberts, Jr.: Justice Gorsuch?

Neil Gorsuch: You haven't had a chance to talk about the officer point, and I just want to give you an opportunity to do that.

Mr. Mitchell makes the argument that particularly in the Commissions Clause, for example, all officers are to be commissioned by the president, seems to be all-encompassing, that language.

And I'm curious to your response to that. And along the way, if you would, I  -- I -- I poked a little bit at the difference between "office" and "officer" in the earlier discussion, you may recall, but I  -- I think one point your -- 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 Stat es because of the Incompatibility Clause that says they can't. So maybe the Constitution to us today, to a lay reader, might look a little odd in distinguishing between "office" and "officer," not prepositions, nouns, a distinction.

But maybe that's exactly how it works.

Thoughts?

Jason C. Murray: Well, I'd start with the idea that the meaning of "officer" in the 1780s was the same meaning that it has today, which is a person who holds an office.

And, certainly, in particular contexts like the Commissions Clause, it appears that that's referring  -- you know, that that is referring to a narrower class of officers because we know that there are  --

Neil Gorsuch: Except it says "all."

Jason C. Murray: Well, we know that there are classes of officers, like the President Pro Tem, who don't get their commissions from the President.

Neil Gorsuch: Well, that's because the Constitution elsewhere says that.

Jason C. Murray: We know that the Appointments Clause refers  to a class of officers who get their appointment from the Constitution itself  --

Neil Gorsuch: Mm-hmm.

Jason C. Murray: --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's the pres ident who grants it. But I think it's important to bring us back to Section 3 in particular because that was 80 years --

Neil Gorsuch: But, before -- befo re we get to that, though, just the distinction between "office" and "officer," do you  --do you agree that the Constitution does make that distinction, particularly with respect to the Speaker and President Pro Tem?

Jason C. Murray: 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 non-official capacity.

But I think that narrow --

Neil Gorsuch: You agree they are officers who don't hold an office?

Jason C. Murray: They're officers who -- who may hold an office but don't swear an oath under Article VI in that official capacity.

Neil Gorsuch: Well, how can they hold an office under the Incompatibility Clause?  It says they can't.

Jason C. Murray: Well, I think that's a fair point, and I think that 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.

Neil Gorsuch: Well, no, the Constitution says they're officers of the United States -- so --so there are some instances when you have an officer but not an office?

Jason C. Murray: Those may be an exceptional circumstance.

Neil Gorsuch: Okay.

Okay.

Jason C. Murray: But I would  --

Neil Gorsuch: Thank you.

Jason C. Murray: You're welcome.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: The concerns of some questions have been the states having such power over a national office, other questions about different states having different standards of proof, and they seem underscored by this case, at least the dissenting opinion below.

Justice Samour said, "I've been involved" -- "I've been involved in the justice system for 33 years now, and what took place here doesn't resemble anything I've seen in a courtroom" and then added, "What transpired in this litigation fell woefully short of what due process demands." Now I don't know whether I agree or not. I'm not going to take a position on that, but the -- the fact that someone's complaining not about the bottom-line conclusion but about the very processes that were used in the state would seem to -- and that 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 because that was powerful language.

Again, not disagreeing about the conclusion but about the very fairness of the process.

Jason C. Murray: Yes, Your Honor, but that language was, with respect to Justice Samour, just not correct.

Preside nt Trump had a five-day trial in this case.

He had the opportunity to call any witnesses that he wanted.

He had the opportunity to cross-examine our witnesses.

He had the opportunity to testify if he wanted to testify.

And, of course, the process was expedited because ballot access decisions are always on a fast schedule. But, in this whole case, from the trial court all the way up to this Court, President Trump has never 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, and this is how ballot access determinations in election cases are decided all the time.

Brett M. Kavanaugh: Okay.

Second question, some of the rhetoric of your position -- I don't think it is your position, but 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.

But, obviously, Congress has enacted statutes, including one still in effect. Section 2383 of Title 18 prohibits insurrection. It's a federal criminal statute.

And if you're convicted of that, you are  -- it says, "shall be disqualified" from holding any office. And so there is a federal statute on the books, but President Trump has not been charged with that.

So what  -- what are we to make of that?

Jason C. Murray: 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.

And I would emphasize that by the time that Section 3 was ratified, most Confederates had already received a criminal pardon.

Brett M. Kavanaugh: I guess the question is --

Jason C. Murray: So --

Brett M. Kavanaugh: -- a little bit different, which is, if the concern you have, which I understand, is that insurrectionists should not be able to hold federal office, there is a tool to ensure that that does not happen, namely, federal prosecution of insurrectionists.

And 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?

Jason C. Murray: That's absolutely right, Your Honor.

But I would just make the point that the Framers of Section 3 clearly understood that criminal prosecutions weren't sufficient because oftentimes insurrectionists go unpunished, as was the case in the Civil War, and that the least we can do is impose a civil disqualification penalty so that even if we don't have the stomach to throw someone in jail  --

Brett M. Kavanaugh: Well, they had the quo warranto provision that was in effect then from 18 -- 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 and kind of to the extent it's elusive language or 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?  Because your position has the effect of disenfranchising voters to a significant degree. And should that be something -- does that come in when we think about should we read Section 3 this way or read it that way?  What about the background principle, if you agree, of democracy?

Jason C. Murray: I'd like to make three points on that, Justice Kavanaugh.

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. And, second, Section 3 is designed to protect our democracy in that very way.

The Framers of Section 3 knew from painful experience that those who had violently broken their oaths to the Constitution couldn't be trusted to hold power again because they could dismantle our constitutional democracy from within, and so they created a democratic safety valve.

President Trump can go ask Congress to give him amnesty by a two-thirds vote. But, unless he does that, our Constitution protects us from insurrectionists. And, third, this case illustrates the danger of refusing to apply Section 3 as written because the reason we're here is that President Trump tried to disenfranchise 80 million Americans who voted against him.

And the Constitution doesn't require that he be given another chance.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: So  the general rule is that, absent rare circumstances, state courts and federal courts share authorities.

State courts have authority to enforce the Constitution, but there are certain limits to that, certain situations in which the Constitution itself preempts the state's ability to resolve constitutional questions. And, you know, Tarble's Case is one.

And you said earlier that once a president is elected, you accepted that a state couldn't do anything about that, like you couldn't  --Colorado couldn't enact its own say quo warranto provision and then use it to get the secretary of state or the president or anyone else out of office. And I assume that's because of this principle of structural preemption.

Am I right?

Jason C. Murray: Yes, Your Honor.

Amy Coney Barrett: Okay.

So I just want to clarify what that means for your argument.

That means that your eggs are really in the basket of the Electors Clause, really in the Article I basket, because you're saying that even though all of 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 effect on a national election, but you're 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?

Jason C. Murray: Absolutely.

States run presidential elections.

That's very clear from Article II.

Once states have selected the electors and the electors have voted, states have no more power over the candidate who has been them nominated for president.

But until then, the states do have the power to adjudicate those issues.

Amy Coney Barrett: Thank you.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: So when I asked you earlier 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 where there were insurgents and Confederates. And I guess in my view of the history, I'm wondering, really, whether presidential elections were such a circumstance, that the Framers actually envisioned states enforcing Section 3 with respect to presidential election s as opposed to senatorial elections, representatives, the sort of more local concerns. So 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?

Jason C. Murray: Well, 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.

So ballot access rules to restrict presidential candidates wouldn't have  --wouldn't have existed.

They wouldn't have been raised one way or another.

Ketanji Brown Jackson: Right, but --

Jason C. Murray: So --

Ketanji Brown Jackson: -- I'm not making a --

Jason C. Murray: But  --

Ketanji Brown Jackson: -- distinction between ballot access and  --

Jason C. Murray: Well  --

Ketanji Brown Jackson: -- anything else.

Yeah.

Jason C. Murray: Understood.

Ketanji Brown Jackson: Yeah.

Jason C. Murray: But the more broad point I want to make is what is very clear from the history is -- is that the Framers were concerned about charismatic rebels who might rise through the ranks up to and including the Presidency of the United States.

Ketanji Brown Jackson: But then why didn't they put the word "President" in the very enumerated 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 and president is not there. And so 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're worried about the charismatic person, we're going to bar insurrectionist electors and, therefore, that person is never going to rise?

Jason C. Murray: This came up in the debates in Congress over Section 3 where Reverdy Johnson said why haven't you included president and vice president in the language?  And Senator Moore responds:  We have.

Look at the language, "any office under the United States."

Ketanji Brown Jackson: Yes.

But doesn't that at least suggest ambiguity?  And 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 -- the language here doesn't seem to include president, why is that? And so if there's an ambiguity, why would we construe it to  --as Justice Kavanaugh pointed out --against democracy?

Jason C. Murray: Well, Reverdy Johnson came back and agreed with that reading. "Any office" is clear, the Constitution says about 20 times that the presidency in office --

Ketanji Brown Jackson: No, I'm not going to that.

So let me just say so your point is that there's no ambiguity with -- with having a list and not having "president" in it, with having a history that suggests that they were focused on local concerns in the south, with this conversation where the legislators actually discussed what looked like an ambiguity, you're saying there is no ambiguity in Section 3?

Jason C. Murray: Let me take the point specifically about electors and senators, if I might, because I think that --

Ketanji Brown Jackson: Yes.

Jason C. Murray: --is important.

Presidential electors were not covered because they don't hold an office.

They vote.

And this decision --

Ketanji Brown Jackson: No, I'm talking about the barred office part of this.

Right?

Jason C. Murray: Exactly.

So the barred office is, if you want to include everybody, first, you have to specify presidential electors because they're not offices.

So they wouldn't fall under any office. Second of all, senators and representatives don't hold office either.

The Constitution tells us that under the Incompatibility Clause and refers to them as holding seats, not offices. And so you want to make sure that there is no doubt that senators and representatives are covered, given that the Constitution sugge sts otherwise, you have to include them. The Constitution says the presidency holds an office, as do members of this Court.

And so other high offices, the president, vice president, members of this Court  --

Ketanji Brown Jackson: All right.

Let me ask you -- I appreciate that argument. If we think that the states can't enforce this provision for whatever reason in this context, in the presidential context, what happens next in this case?  I mean, are  --is it done?

Jason C. Murray: If this Court concludes that Colorado did not have the authority to exclude President Trump from the presidential ballot on procedural grounds, I think  --I think this case would be done, but I think it could come back with a vengeance because ultimately members of Congress would --may have to make the determination after a presidential election if President Trump wins about whether or not he is disqualified from office and whether to count votes cast for him under the Electoral Count Reform Act. So President Trump himself urges this Court in the first few pages of his brief to resolve the issues on the merits, and we think that the Court should do so as well.

Ketanji Brown Jackson: And there is no federal litigation, you would say?

Jason C. Murray: Well, that's correct, because there is no federal procedure for deciding these issues, short of a criminal prosecution.

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, counsel. Ms. Stevenson.

Ms. Anderson -- no it's Stevenson, I'm sorry.

Shannon W. Stevenson: Mr. Chief Justice and may it please the Court: Exercising its far-reaching powers under the Electors Clause Colorado's legislature specifically directed Colorado's courts to resolve any challenges to the listing of any candidate on the presidential primary ballot before Coloradans cast their votes. Despite this law, Petitioner contends that Colorado must put him on the ballot because of the possibility there would be a super majority act of Congress to remove his legal disability. Under this theory, Colorado and every other state would have to indulge this possibility, not just for the primary but through the general election and up to the moment that an ineligible candidate was sworn into office. Nothing in the Constitution strips the states of their power to direct presidential elections in this way.

This case was handled capably and efficiently by the Colorado courts under a process that we have used to decide ballot challenges for more than a century.

And as everyone agrees, the Court now has the record that it needs to resolve these important issues. I welcome your questions.

Clarence Thomas: Is there an express provision with respect to -- that defines what a qualified candidate is?

Shannon W. Stevenson: No, Your Honor.

There's not an express provision.

When the Colorado Supreme Court looked at this, they looked at the need to be qualified, plus the fact that the  --this part was  --

Clarence Thomas: So what does it say then, if it is not express?  How do we get to this issue of qualified candidate?

Shannon W. Stevenson: What the court  -- the Colorado Supreme Court did  -- and let me, if I could have a standing objection, I do want to make the argument that you shouldn't  review the Court's statutory interpretation.

Clarence Thomas: No, I'm just looking at the statute.

Shannon W. Stevenson: Right.

What the Court did was to say that we have three important provisions in this section that show that candidates have to be qualified.

First, it requires that under 12032(a) that a political party that wants to participate has to have a qualified candidate. It also looked at the fact that t he comparable write-in candidates also had to be qualified.

Clarence Thomas: I know, but this isn't a write-in candidate.

So we're actually talking about the participation of a political party, right?  We're not talking about the participation of a candidate?

Shannon W. Stevenson: Sure.

I think that the fact that the write-in candidate also had to be qualified was confirmatory of the fact that the political party candidate also had to be qualified, and it would be otherwise incongruous to read those things differently.

Clarence Thomas: So how is Section 3 a qualification?

Shannon W. Stevenson: Under the reasoning of the Colorado Supreme Court  --

Clarence Thomas: No, just on the -- on its face.

Shannon W. Stevenson: A  --a candidate must have, meet all the criteria for eligibility.

And I don't perceive any distinction between being -- meeting the --

Clarence Thomas: Okay.

Shannon W. Stevenson: -- eligibility criteria and not being disqualified.

There's -- I just don't see any meaningful difference between those two things.

Clarence Thomas: Thank you.

John G. Roberts, Jr.: You  -- you represent the secretary of state, right?

Shannon W. Stevenson: That's correct, Your Honor.

John G. Roberts, Jr.: If you're the secretary of state somewhere and someone comes in and says I think this candidate should be disqualified, what -- what do you do next?

Shannon W. Stevenson: Administratively, and what the deputy elections director testified to at the hearing, is that if they obtain objective -- objective knowable information, the secretary can act on that and inform the candidate --

John G. Roberts, Jr.: So the secretary at first decides whether that's objective, knowable information?

Shannon W. Stevenson: In some instances.

In this case, the challenge was actually brought before the candidate's paperwork had even been submitted, and because there had already been a challenge asserted and -- and put into the proper court procedure, the secretary didn't even make that determination because she didn't have the paperwork.

John G. Roberts, Jr.: Well, what -- in another case where that wasn't the procedure that was filed --

Shannon W. Stevenson: Sure.

John G. Roberts, Jr.: -- somebody comes in, maybe they've got a stack of papers saying here's why I think this person is guilty of insurrection, it's not a big insurrection, something that, you know, happened down  --down the street, but they say this is still an insurrection, I don't know what the standard is for when it arises to that.

Shannon W. Stevenson: I think anything that even presented that level of controversy about one person having a set of facts that they said proved this would send this case to the 113 procedure that we use to resolve ballot challenge issues like that.

And if -- if another elector or the individual who brought the information didn't want to bring it, the secretary herself could bring that action.

John G. Roberts, Jr.: Is there a provision for judicial review of secretary of state's action both in Colorado and perhaps what you know about other states?

Shannon W. Stevenson: Well, certainly in Colorado, if  -- any action that the secretary takes that anyone wants to challenge, they can use the 113 process to do so.

I think states have varying degrees of that.

There are certainly other states that allow versions of that, and then I don't know whether there are others that don't.

I certainly know that there are some that do.

Samuel A. Alito, Jr.: I think we're told that there are states that do not provide for any judicial review of a secretary of state's determination.

Is that incorrect?

Shannon W. Stevenson: No, no.

I think that's right, and I think there are some states that actually have no mechanism, to come to, I think, Justice Kagan's point, or there are some states that don't have any mechanism to exclude a disqualified candidate from the ballot at all.

And I do want to speak to that for just a minute about the actual --

Samuel A. Alito, Jr.: Well, wouldn't that be constitutional?  If the secretary of state's determination was final?

Shannon W. Stevenson: I think so, under Article II, the Electors Clause, Your Honor, that that be would be constitutional.

States get very broad authority to determine how to run their presidential elections.

Samuel A. Alito, Jr.: Could a state enact a statute that provides different rules of evidence and different rules of procedure and different standards of proof for this type of proceeding than for other civil proceedings?

Shannon W. Stevenson: Yes, Your Honor, I believe it could under the same Electors Clause power.

Sonia Sotomayor: That issue would be determined under perhaps a different constitutional provision like the Due Process Clause, correct?

Shannon W. Stevenson: Correct.

The bounds of the Electors Clause are other constitutional constraints, which would include due process, equal protection, First Amendment.

Amy Coney Barrett: What's the due process right?  Does the candidate have a due process right? What's the liberty interest?

Shannon W. Stevenson: I think it's not very precisely defined in the case law, but I think there is a recognition that there is a liberty interest of a candidate and there is some due process interests in being able to access the ballot.

Amy Coney Barrett: I thought that was -- I thought that was for voters.

You  -- you think for the candidate too, that there's -- that it would be taking something away from the candidate?

Shannon W. Stevenson: Certainly, yes.

And I think a lot of times you see that in the First Amendment context where candidates can have an issue about being on the ballot, but it's sort of a hybrid or oftentimes First Amendment, Fourteenth Amendment, Qualifications Clause, all discussed together.

Amy Coney Barrett: Let me ask you a question about --just follow-up to Justice Alito.

You know, these decisions might be made different ways in different states.

Maybe a secretary of state makes it in one state with very little process, or a process more like Colorado's could be followed by others. Would our standard of review of the record vary depending on the procedure employed by the state?

Shannon W. Stevenson: I think this Court has tremendous discretion to decide its standard of review, and it might be based on the process that was employed by an individual state.

I think you could exercise the independent review of Bose Corp. that Mr. Murray talked about, or you could give deference where you have a full -blown proceeding like the one here that had all the protections of Rules of Evidence and cross-examination and things like that.

John G. Roberts, Jr.: You  -- I'm sorry. You think we should give deference in reviewing the factual record, the legal conclusions?  What -- in other words, we shouldn't undertake a de novo review?

Shannon W. Stevenson: I don't think the review should be de novo.

However, I  --I am amenable to the suggestion that the Court would do the Bose Corp.- type independent review that might provide greater certainty to states around the country as to what the Court's position is on the factual record in this case.

John G. Roberts, Jr.: Of course, if it were not de novo review, we could reach disparate results even on the same record, right?

Shannon W. Stevenson: I  --I think that's possible.

Elena Kagan: I take it your position is that this disqualification is really the same as any other disqualification, age or residence or what have you.

Shannon W. Stevenson: That's correct.

Elena Kagan: And -- and -- and what if I were to push back on that and say, well, this disqualification, number one, it's in the Fourteenth Amendment, and the point of the Fourteenth Amendment was to take away certain powers from the states? Number two, Section 3 itself gives Congress a very definite role, which Mr. Mitchell says is interfered with by the ability of states to take somebody off the ballot?  And maybe, number three, it's just more complicated and more contested, and, if you want, more political?  And why don't all of those things make a difference in our thinking about this qualification as opposed to any other?

Shannon W. Stevenson: And so, Your Honor, I think the trouble with the -- categorizing the insurrection issue as  --as necessarily more difficult is it's just an assumption that's coming up, I think, because of this case. And, again, back to the Chief Justice's point, we could have a very easy case under the Fourteenth Amendment with an avowed insurrectionist who, you know, came in and wrote on his paperwork:  I engaged in an insurrection in violation of the Fourteenth Amendment.

A nd it would be open-and-shut case as to whether or not that person would meet the qualifications to be on the Colorado ballot. With respect to your other questions about the Fourteenth Amendment, my positions are based on the assumption that, under the Fourteenth Amendment, the states have the power to enforce Section 3, just like they do other presidential qualifications, and I would defer to the electors arguments on those points.

Samuel A. Alito, Jr.: Suppose a state that does recognize non-mutual collateral estoppel makes a determination, using whatever procedures it decides to adopt, that a particular candidate is an insurrectionist. Could that have a cascading effect, and so the decision by a court in one state -- the decision by a single judge whose factual findings are given deference, maybe an elected trial judge, would have potentially an enormous effect on the candidates who run for president across the country?  Is that something we should be concerned about?

Shannon W. Stevenson: I think you should be concerned about it, Your Honor, but I think the concern is not as high as maybe it's made out to be in particularly some of the amicus briefs.

And, again, under Article II, there is a huge amount of disparity in the candidates that end up on the ballot on -- in different states in every election. Just this election, there's a candidate who Colorado excluded from the primary ballot, who is on the ballot in other states even though he is not a natural -born citizen.

And that's just  -- that's a feature of our process.

It's not a bug. And then I think, with respect to the decision-making and -- you know, we're here so that this Court can give us nationwide guidance on some of the legal principles that are involved.

I think that reduces the potential amount of disparity that would arise between the states. And then with respect to the factual record and how that gets issued and implemented, the states have processes for this.

And I think we need to let that play out and accept that there may be some messiness of federalism here because that's what the Electors Clause assumes will happen.

And if different states apply their principles of -- of collateral estoppel and come to different results, that's okay.

And  --and Congress can act at any time if -- if it thinks that it's truly federalism run amok.

John G. Roberts, Jr.: Justice Thomas, anything further? Justice Alito?

Samuel A. Alito, Jr.: Well, just one further question, and it's along the same lines of a lot of other questions.

We have been told that if what Colorado did here is sustained, other states are going to retaliate and they are going to potentially exclude another candidate from the ballot.

What about that situation?

Shannon W. Stevenson: Your Honor, I think we have to have faith in our system that people will follow their election process  -- processes appropriately, that they will take r ealistic views of what insurrection is under the Fourteenth Amendment. Courts will review those decisions.

This Court may review some of them. But I don't think that this Court should -- should take those threats too seriously in its resolution of this case.

Samuel A. Alito, Jr.: You don't think that's a serious threat?

Shannon W. Stevenson: I  --I think we have processes  --

Samuel A. Alito, Jr.: We should proceed on the assumption that it's not a serious threat?

Shannon W. Stevenson: I think we have institutions in place to handle those types of allegations.

Samuel A. Alito, Jr.: What  --what are those institutions?

Shannon W. Stevenson: Our -- our states, their own electoral rules, the administrators who enforce those rules, the courts t hat will review those decisions, and up to this Court to ultimately review that decision.

John G. Roberts, Jr.: Justice Sotomayor? Justice Kagan? Justice Gorsuch? Justice Kavanaugh? Justice Barrett? Justice Jackson?  Anything further? Thank you counsel.

Shannon W. Stevenson: Thank you.

John G. Roberts, Jr.: Rebuttal, Mr. Mitchell?

Jonathan F. Mitchell: Both Mr. Murray and Ms. Stevenson rely heavily on the Electors Clause and the authority that it gives the legislature of each state to direct the manner of appointing presidential electors. But that prerogative under Article II must be exercised in a manner consistent with other constitutional provisions and restrictions.

And Justice Kagan alluded to one of those restrictions that might be imposed by the First Amendment, but there are others. A state cannot use its power under Article II's Electors Clause to instruct its presidential electors only to vote for white candidates.

That would violate the Equal Protection Clause, but nor can it exercise its power in a manner that would violate the constitutional holding of U.S. Term Limits against Thornton and they cannot use the Electors Clause as an excuse to impose additional qualifications for the presidency to go beyond what the Constitution enumerates  in Article II. And the problem with what the Colorado Supreme Court has done is they have in a way changed the criteria in Section 3 by making it a requirement that must be met before the candidate who is seeking office actually holds the office effectively moving forward in time the deadline that the candidate has for obtaining a congressional waiver. There has still been no answer from the Anderson litigants on how to distingui sh the congressional residency cases, where the courts of appeals, not decisions from this Court, but the courts of appeals in applying this Court's holding in U.S. Term Limits  have unanimously disapproved state laws requiring congressional candidates to show that they inhabit the state from which they seek election prior to Election Day. And there is still in our view no possible way to distinguish those from the situation below in the Colorado Supreme Court. Mr. Murray also invoked the de facto officer doctrine as a possible way to mitigate the dramatic consequences that would follow from the decision of this Court that rejects the rationale of Griffin's case and that  also agrees with Mr. Murray's contentions that President Trump is disqualified from holding office on account of the events of January 6th and that he's covered by Section 3 as an officer of the United States. This Court's recent decisions in Lucia and Arthrex held that officers who are unconstitutionally appointed under Article II and that made decisions under the APA that were attacked as invalid, those decisions were still vacated and this Court did not use any variant of the De Facto Officer Doctrine to salvage the decisions that were made by these unconstitutionally appointed officers. There is no way to escape the conclusion that if this Court rejects Griffin's case, and also agrees with Mr. Murray's construction of Section 3, that every executive action taken by the Trump administration during its last two weeks in office is vulnerable to attack under the APA and, further, that if President Trump is reelected and sworn in as the next president, that any executive action that he takes could be attacked in federal court by anyone who continues to believe that President Trump is barred from office under Section 3. I'm happy to answer any other questions that the Court may have.

John G. Roberts, Jr.: Thank you, counsel.

Jonathan F. Mitchell: Thank you.

John G. Roberts, Jr.: The case is submitted.