analysts expect that to happen but it's not impossible but more broadly uh you get a sense of how the Supreme Court is going to handle this very sensitive situation are they going to be put in the middle as they are today of of of a presidential election because remember this is not the only case that's going to come before them we expect uh that the Trump team is going to appeal the ruling that we saw uh earlier this week by the the Circuit Court about whether or not Donald Trump or any preside
nt has absolutely immunity from Criminal prosecution uh that that's going to be appealed likely to the Supreme Court so we're going to see this as the first potentially of at least two and maybe more uh cases uh that will be Central to how this country uh decides who the next president will be Terry what are you watching for in the hearing as we hear from the attorneys and the justices well one thing that the justices fa is that they really can't duck this case the there there's no easy compromi
se there's no real precedent it's all up to them so they'll be talking to each other exploring what is the common ground that they have and and it may be you know something like the notion of an Insurrection and how that vague term can be applied in this situation in 1868 when the amendment was passed every American knew that the Civil War had been an Insurrection do Americans agree on that today what are the standards for that uh and one important piece of information that I expect to hear rais
ed by Trump's lawyers today is that Biden's own justice department special counsel Jack Smith has secured 700 guilty pleas not one person has been charged with the federal crime of insurrection Diane all right Asha Rapa Terry Moran Jonathan Carl thank you all thank you and we will have full coverage of the Supreme Court's arguments throughout the [Music] day Secretary of State Anthony blinkin says he believes a hostage deal is still Within Reach despite Israeli Prime Minister Benjamin Netanyahu
rejecting hamas's counter offer this comes as Aid organizations are sounding the alarm about Israeli troops advancing toward Rafa foreign correspondent James Longman is in Tel Aviv with the latest despite growing pressure to accept a deal to bring home Israel's remaining hostages Benjamin Netanyahu has rejected a Hamas ceasefire proposal and he called their conditions delusional Hamas called for the withdrawal of all Israeli troops from Gaza over a 4 and a half month ceasefire over three phases
Hamas would release all hostages with Israel exchanging prisoners instead the war rages on and gaza's last City Still Standing Rafa now in the crosshairs the UN says a quarter of a million are Sheltering here but IDF ground troops are now approaching people here are desperate for a deal enough frankly enough says is this woman find a solution for us we're destroyed and hostage families pleading with their prime minister 34 yearold Sharon alone Kuno telling him we've reached the Moment of Truth t
he moment when you must decide who lives and who dies conscious that time is against them the IDF says at least 31 of the more than 100 hostages in Gaza are already believed dead 23-year-old HH Goldberg Poland is one of the Americans beds still in captivity his mother met the Secretary of State this morning we started by saying that there is no time left for these hostages what went through your mind when you heard that this ceasefire deal had fallen through what would you say to Netanyahu right
now right now he's at a Crossroads he could be known as the Prime Minister who oversaw the tragedy of October 7th and then subsequently brought home 136 body bags or he could be known as the Prime Minister who oversaw October 7th but brought home as many hostages Al as possible strengthened the country put it on a better path and moved us forward so Benjamin Netanyahu is repeating his call for total victory in Gaza so the IDF is closing in on Rafa but it is the last refuge in Gaza hundreds of t
housands of people have taken shelter there they really don't have anywhere else to go Diane foreign correspondent James Longman in Tel Aviv thank you and intelligence officials are issuing a new warning about Chinese cyber attacks they say Hackers from China spent years in US networks trying to attack americ American Transportation hubs and other critical infrastructure ABC News chief justice correspondent Pier Thomas has the details on that story hi Pier Diane good morning we're getting distur
bing new details about China's efforts to secretly infiltrate and potentially attack our key infrastructure and literally our way of life Dian we've now learned that some of the covert operations by China began at least 5 years ago Homeland Security FBI and intelligence officials issued a new bulletin yesterday highlighting the Chinese hacking campaign we recently told our viewers about the warning says China shifted from a strategy of using hacking to commit economic Espionage to a strategy of
using hacking to disrupt how Americans go about their daily lives the Chinese cyber warfare involves planning malware on computer network serving our electrical grid oil and gas pipelines our transportation systems even our water treatment plants authorities say the plan will allow China to attack at a time of their choosing FBI director Ray sounding the alarm calling his concern about China the threat of Our Generation Diane chief justice correspondent Pier Thomas thank you coming up a moose on
the loose how skiers are reacting after seeing this barreling down the mountain at a popular Resort also ahead what you need to know about electric cars and tax breaks you asked and Alexis christopherus is answering your money questions next and stay with ABC News live as the Supreme Court hears arguments on whether former president Trump can be banned from the 2024 ballot we'll listen to those arguments live when they [Music] happen whenever news breaks we are here in Israel a nation at war af
ter that brutal surprise attack by Hamas on the ground in Ukraine reporting from Leon main the scene of a horrific mass shooting ABC News live is right there everywhere from the scene of that deadly missile strike in Dena Ukraine reporting from the earthquake in Turkey in Rolling Fort This Tornado tore through this little town from the most devastating disaster in Hawaii from Charleston South Carolina on the 2024 campaign Trail in Iceland let's go traveling with the president in Mexico City wher
ever the story from the front lines from Southern Israel outside the Gaza Strip in beir from the FBI reporting from the nurses on the picket line here at 10 Downing Street in London streaming live to you wherever the story is wherever the story is wherever ever the story is we're going to take you there you're streaming ABC News live ABC News live you're streaming ABC News live ABC news live streaming free everywhere America's number one streaming news it's lunchtime in America so what are we se
rving up well how about everything you need to know you know that sounds pretty good it to your health your money breaking news puup culture with the biggest Stars music Trends and of course good food GMA 3 what you need to know a third hour of GMA in the afternoon so join us afternoon for everything you need to know I love that all right here we go you ready let's do it yes it's the show America wants and America needs right now this is what would you do let's go how are you H you so what will
you be watching Saturdays on ABC News live what would you do hey I guess I just found out the what would you do marathon 2 to 6 Eastern every Saturday on ABC News live my favorite show welcome back to ABC News live first what would you do if you were out skiing when all of a sudden you were being chased by a giant moose well that's what happened in Jackson Hall Wyoming and the whole thing was caught on camera now some of those skiers are sharing their story ABC's Morgan Norwood has more moose th
is was the moment a massive moose came barreling down the slopes unbelievable headed straight for a group of skiers in Jackson Hall Wyoming I caught a little bit of air and the moose was within 10 feet of me bill Foy was with his friends Alex and Kenny when the Moose started to close in I was moving pretty fast I mean I was on both edges of my snowboard moving with that moose and at one point he says the bull bolted for Kenny go Ken go faster others calling out to warn him go faster the skiers w
eaving downhill to avoid a dangerous Collision the Moose eventually veering off and Bill still in disbelief in in the moment more surprised um knowing that those types of animals can be very aggressive especially out in the wild experts say these animals which can weigh up to 1,500 lb and St about 7t tall or extremely territorial when charging they can reach speeds up to 35 mph it can be scary it can feel dangerous it can feel threatening and aggressive but usually moose are reacting defensively
to the situation that they're in and again it's not uncommon in areas where you have people recreating especially even in big groups in these areas that moose are spending the whole winter in and getting their food there so listen up if you find yourself face to face with the Moose experts say the best thing to do is give them space 25 yards that's about two school buses worth of distance now if they're charging at you hide behind a tree or something solent and if it knocks you down curl into a
ball and protect your head Diane give them space our instructions I don't think I needed Morgan but I appreciate it nonetheless no thank you and a large part of the country might be questioning if it is still winter today re record heat is starting to settle in from Minneapolis to New York ABC News chief meteorologist Ginger Z is tracking it all for us Ginger Diane it is all about the warmth we have had such a dud of a winter in most of the Great Lakes in fact the Twin Cities are still on track
to have their warmest winter on record and the last couple days have certainly helped these records fell uh Traverse City Michigan 50 on Wednesday Wasa Wisconson was 47 Green Bay was 46 wow they have very low ice on the Great Lakes you can imagine too record high temperatures today all the way from De Mo to Bingington possible going to 64 in De Mo so it's been this Ridge right that's been in place but now it's starting to slide East a little so we are going to move some of that near record warm
th if not breaking records to New York City which would be uh up low 60s Boston if they get to 60 that's a record Detroit should do it on Friday at 60 in Indianapolis too so this is weather but we have seen a trend in the Great Lakes for warmer than average if not the warmest winter on record and then when you look at the whole globe January 2024 was the warmest January on record with paleoclimatology we know those records can go back at least 100,000 years and this is the eighth month in a row
that the Earth has had their hottest month on record Diane ABC News chief meteorologist Ginger Z thank you and it's time now for a weekly segment ask Alexis where business reporter Alexis Christopher shares Financial advice on topics that matter most to you and today she's here to answer your questions on parent plus loan forgiveness and Electric Vehicle tax breaks all right Alexis let's start with Jim from New Jersey Jim asks my wife and I are near retirement age but still struggling to pay off
our Parent Plus Loans that we took out for our twin Sons college education nearly 30 years ago is there loan forgiveness for Parent Plus Loans well Jim I want to thank you for this question because a growing number of parents are finding themselves in the exact situation unable to finance their own retirement because they are saddled with student loans from their kids so here's the good news you can access the government's income contingent repayment plan if you consolidate your parent plus loa
n or loans into a direct consolidation loan they're going to work with you to lower that monthly payment and if you're still making those payments after 25 years which in the case of Jim that might be the remaining balance is then forgiven you may also want to consider refinancing that Parent PLUS Loan if you have good credit you might qualif qualify for a more favorable interest rate with a private loan because the current Parent PLUS Loan rate right now is a little over 8% and depending on you
r adult children's financial situation it's okay to ask them to chip in to offset that cost I mean if your twins each kicked in just $50 a month that's $100 less that you and your wife need to contribute to paying off their college education all right so let's go to Mary Jane from Virginia Alexis Mary Jane wants to know I'm planning to buy my first electric car this year and would like to know if I'm eligible for any tax breaks ah this is the year after year this is the question there are so man
y changes to the tax code so new this year you can choose between claiming a non-refundable credit on your tax return or transferring that credit to the dealership to lower the price of the car at the time you make the purchase now the challenge this year and really going forward is going to be that fewer electric cars are qualifying for those tax breaks because battery manufacturing restrictions have gotten so much tougher so you can log on to fueleconomy.gov for up-to-date information on eligi
ble models and depending on things like your income the price of the car the make and model new EVS maybe eligible for a $7,500 tax credit while used electric vehicles may qualify for up to $4,000 in tax breaks and also here's an idea check if your state offers credits or rebates on top of those federal tax breaks those can add up but in Mary Jane state of Virginia eligible residents may be able to get credits and rebates totaling $4,500 for qualifying EVS you just want to make sure you're able
to double dip and claim both the state and federal tax breaks Diane all right Alexis Christoper thank you coming up rebuilding six months later how residents of Maui are working to restore the island after last year's devastating wildfires and stay with ABC News live as the Supreme Court hears arguments on whether former president Trump can be banned from the 2024 ballot we'll listen to those arguments live as they happen this is ABC News live the crush of families here in Poland at Refugee cent
ers in Putin Russia on the ground in Ukraine close to the front line from the capital destructive Cat 4 storm you're along I5 Boston is in the Bulls let's go ABC News live America's number one streaming news anytime anywhere streaming 24/7 straight to you for free thank you for making ABC News line America's number one streaming news with so much at stake so much on the line more Americans turn here than any other newscast ABC News World News Tonight with David mure America's number one most wat
ched newscast across all of television from America's number one news comes the allnew ABC News app breaking news Incredible video faster smarter and customizable to your interests if you love being in the know you're going to love love this experience the allnew ABC News app download it now wherever news breaks it's so important to always remember that lives are changed getting you behind the stories as they happen ABC News live Prime we'll take you there streaming free on ABC News live inside
that pen is a slice of human brain I've never seen a place like this in my life oh my god look wow [Music] reporting from the Auto Workers picket lines in Michigan I'm faithao wherever the story is we'll take you there you're streaming ABC News [Music] live welcome back 6 months since the deadly wildfires in Maui we're taking a closer look at how the area is rebuilding the historic district of lah suffered more than $5.5 billion in damage and more than 2,000 households are still displaced ABC's
Melissa Don has the latest from Maui it was just 6 months ago when a massive Inferno ravaged the historic district of lahina which was once the capital of the Hawaiian Kingdom as well as a national historical landmark yeah got he got to go at least 100 died three still missing over $5.5 billion in damage and more than 2,000 households remain displaced in one of Hawaii's worst disasters on record about no later than 4:00 a.m. is when I begin my day I have a rule and I don't leave the office until
every voicemail email has been dealt with insurance executive mahalani strong is a Laha native and on the front line of the work to rebuild there's a lot of people that under bought Insurance because they didn't plan for something like this to happen she says the process of filing out a claim is a challenge imagine living in a home for 20 years and having to inventory everything you had in that home in order to collect your check as of last December more than 3,900 homeowners have filed insuran
ce claims in the Maui fire with nearly 1,600 of those properties suffering a total loss roughly 30% of claimed money has not been paid equal to more than $456 million I think some of my biggest frustrations are fighting for what I believe they should be getting and getting a kickback or having to wait till it goes through a process with so much about the future still so uncertain the community taking comfort in the past leaning on traditions and ancient wisdoms I have a short little Hawaiian pro
verb that goes like this and what that simply means is um life is the Leer when you are in the right place at the right time for all the right reasons Hawaiian cultural leader Willmont kahay Ali calling on ancestors for support and guidance in this Al ceremony the ceremony itself takes people to the water's edge and they go into that water and come out having a whole new experience almost like being born a new and having a new lease un light and in that newness hope and soaka is to like see the
beginning when you're a navigator you have to see the beginning of the Horizon and know that you're going to chart a course to reach your destination ABC's Melissa Adon thank you and thank you for streaming with us I'm Diane Meo ABC News live is here for you anytime with the latest news context and Analysis [Music] this is ABC News live the crush families here in Poland at Refugee centers in Putin Russia on the ground in Ukraine close to the front line from the capital destructive Cat 4 stor alo
ng I5 Boston is in the bullseye let's go ABC News live America's number one streaming news anytime anywhere streaming 24/7 straight to you for free thank you for making ABC newsline America's number one streaming news oh my y'all tuning in for Taylor Swift you going to be tuning in for Usher to you going to do it do it big they say Oscar Tony gramy and me you should put Super Bowl on there too us sure Raymond is going to get shirtless I don't think it'll break any FCC violations go shirtless hey
man that's what I do it's Usher baby Yeah Usher my way to the Super Bowl this is impact by Nightline now streaming on Hulu why do so many people start their day here from ABC News this is start here to be in the know and get a different take on the day's top stories a lot of news today so let's get into it listen now to the Daily News podcast honored with four Edward R murl Awards and see why the New York Times calls it a news podcast worth listening to start here ABC News make it your daily fi
rst listen now that's a part of the story I bet you didn't see coming wherever you get your podcasts start here whenever wherever news breaks it's so important to always remember that lives are changed here in London in Buffalo yaldi Texas edinb BR Scotland reporting from Rolling Fork Mississippi Ukrainian refugees here in waron we're heading to a small community outside of Mexico City getting you behind the stories as they happen ABC News live Prime we'll take you there stream ABC News live wee
k nights wherever you stream your news only on ABC News live from America's number one news source comes the allnew ABC News app breaking news Incredible video faster smarter and it can customize to you and your interests if you love being in the know you're going to love this experience what all the buzz is about experience the allnew ABC News app download it now ABC News America's number one news source we're going to walk down and I'll be there with you we're going to walk down we're going to
walk down anyone you want but I think right here we're going to walk down to the capital and we're going to cheer on our brave senators and congressmen and women and we're probably not going to be cheering so much for some of them because you'll never never take back our country with weakness you have to show strength and you have to be strong we have come to demand that Congress do the right thing and only count the electors who have been lawfully slated lawfully slated I know that everyone he
re will soon be marching over to the Capitol Building to peacefully and patriotically make your voices heard That Was Then president Trump speaking at the ellipse on January 6 just a few minutes before riers broke through the first barriers at the capital I'm Diane Meo thanks for joining us this morning the Supreme Court is set to hear arguments on whether former president Trump should be blocked from running for president due to his actions surrounding January 6th this after Colorado removed hi
m from the state's ballot citing the 14th Amendment which bars anyone who's taken the oath of office and engaged in Insurrection from being able to hold office again the decision could have ramifications far beyond Colorado and those arguments are set to begin within the hour we will bring that to you live as it happens meanwhile two Kentucky moms are demanding Justice after they say they were drugged and attacked while on vacation in the Bahamas they say they didn't take drinks from strangers t
hey weren't drinking in excess and they thought they were doing all the right things to be safe gma3 anchor Eva Pilgrim has the details Amber shear and dangala Dobson were on their first kids vacation on board a Carnival Cruise we've been best friends for over 20 years and we decided we were going to make this our girls trip on the last day of their trip they stopped at a local Resort on Grand Bahama Island a resort they say the cruise ship recommended once there the mothers claim they were offe
red a two for one drink which they accepted but immediately felt ill after the first drink we had to get out of the ocean because we noticed that it was just hitting so hard I just felt so out of it shear and Dobson say they lost Consciousness and alleg that after drinking the drugged cocktails members of the resort staff sexually assaulted them I vaguely remember glimpses of his face I don't remember all of it I don't remember everything but I remembered enough of that he was a staff worker and
he had a goatee and he was a local that the resort security were able to go pull the footage and identify them right then and there they say there were bruises on their legs and that they tested positive for various drugs the Royal Bahamas police posting on Facebook confirming two men were arrested for sexual assault of two women and that an investigation is underway shear and Dobson say that's not enough they're back in the US demanding Justice the state department issued a level two travel ad
visory for the Bahamas in late January due to an increase in homicides and sexual violence it's extremely important if you're going to go overseas uh to look on the state department website as to what they say about crime what security level is it an attorney for the women says the cruise ship Bears some responsibility Carnival has a obligation to warn about dangerous conditions that they know about or they should know about they also have an obligation to make sure that the areas that they're r
ecommending to passengers to tourists are safe Carnival Crews responding to the incident saying in a statement while a Shore in Freeport Bahamas on an independent Shore Excursion two guests on Carnival Elation reported to Bahamian police that they were sexually assaulted at a local Beach our onboard care team provided support for the two guests as they sailed back to Jacksonville Bahamian police are investigating the matter and Carnival is providing our full cooperation so what can you do these
two telling us while they thought being with one other friend was enough they're reconsidering that now their advice to other women stick to groups of four or more when traveling Diane gma3 anchor Eva Pilgrim thank you and an airline is now asking to weigh passengers along with their baggage Finn a says it's looking to collect the data for safety reasons and it's not the only Airline doing it so many social media users say they are horrified at the move ABC News Transportation correspondent Gio
bitez has more on why it's happening the Scandinavian Airline finair inviting passengers to be weighed in along with their carryon baggage the airline says the goal is to collect Anonymous data on average weight of passengers with their hand luggage for the purpose of aircraft balance and performance calculations that are needed for the safe operation of flights so far 600 passengers have volunteered for the survey Airlines use an average uh for mail and for female and for summer and for winter
and you need to correct those every now and then especially if the population has gotten a bit more pudgy it turns out the airline has been doing this since 2018 and it's completely voluntary it's not uncommon for some International Airlines to do weight surveys every few years required by their governing bodies every five years you figure the population changes a little in weight and that's why these tests are needed and fin air is not alone Air New Zealand weighed more than 10,000 passengers l
ast June Air New Zealand calling the survey essential to the safe and efficient operation of the aircraft and that the pilot needs to know the weight and balance of a loaded plane before takeoff and Korean Air did it in the fall saying collecting this data was crucial for the safety of flight operations and again this is completely voluntary nobody is being forced to step on a scale but when this happens it certainly triggers a lot of good questions possibly even some anxiety from so many people
Diane ABC News Transportation correspondent Gio bonitz thank you and NASA is launching a tool that could help scientists better understand climate change January was the 8th consecutive warmest month globally on record and temperatures across a majority of the world's oceans also hit unprecedented levels ABC News chief meteorologist and chief climate correspondent Jinger Z joins me now with how NASA's trying to find out why ginger so what did NASA officials tell you about this tool and how they
're using the data it's collecting right so I made a call yesterday Diane because we got the new information in January hottest January on record 8th month in a row and it felt like we just kept repeating the same thing but we really haven't honed in on the why um a lot of people will talk about the different variables which we will get to um but one of them is aerosols meaning the particles in the air and so what they did last night NASA launched a satellite and that satellite called pace is no
t only going to be looking at the ocean and the Plankton and how they kind of interact with carbon but for this part what's important it'll be looking at aerosols what type they are meaning the type that come from Shipping say that has greatly reduced in the last couple of years or the type that come from dust or seaspray and they'll be able to figure out how those are interacting with our planet because sulfur dioxide the thing that comes out of a lot of the fossil fuels that we burn that actua
lly reflects light and so that as we've reduced and made our air pollution better has allowed more sunlight in allowing us to heat more so anyway this rocket is going to help or I'm sorry this satellite is going to help to determine that variable of aerosols and how much that has to do with the heat and if you look at the record heat right January now officially from cernus the warmest January on record it really is quite insane to see the whole picture of how far above average like how far abov
e the last record this year has been and so um the NASA scientist Gavin Schmidt who I spoke with he said NASA we like Puzzles but we like to solve puzzles and that's what they're going to be working on with Pace the satellite and ginger a HS aren't the only variable NASA is working on to understand this record break in global heat so what else are they looking at here you've probably heard a lot of people say yeah but it's El Nino and they're correct El Nino peaked right now like we just peaked
and we're going and you see the Pacific Ocean remember El Nino means the Pacific Ocean has abnormally warm temperatures however remember this whole heating thing started last summer before we even had El Nino so that made a lot of scientists kind of perk up and say wait that has nothing to do with elino yet now we expect after a peak of elino like right now the spring should be warmer than average that's where we should be seeing the anomaly that said elino is not the only variable a lot of peop
le will talk about the hunga Tonga eruption the volcano and did that have an effect because it put a bunch of things in the stratosphere and a lot of the scientists are saying that they think that's relatively negligible or almost cancels itself out with the sulfur in the water anyway they need to figure out which variable it is and hopefully this pace satellite is going to help them do that all right chief meteorologist and climate correspondent Jinger Z so interesting Ginger thank you thank yo
u coming up Prince William is speaking out of excuse me about King Charles's and Princess Kate's recoveries the thanks he's giving and what we know about Prince Harry's quick return to the US also ahead exploring black history that isn't taught we're speaking with an award-winning Professor about the Lesser known moments in US history and why it's important for America to know its roots and stay with ABC News live as the Supreme Court hears arguments on whether former president Trump can be bann
ed from the 2024 ballot we'll listen to those arguments live when they happen with so much at stake so much on the line more Americans turn here than any other newscast ABC News World News Tonight with David mure America's number one most watched newscast across all of Television get ready America every Friday the hottest Trends Styles and must have what's the right stuff to buy right now I really love that it's time to buy the right stuff yes and save big time too the right Stu Fridays on GMA y
ou're going to love it this is ABC News live the crush of families here in Poland at Refugee centers in Putin's Russia on the ground in Ukraine close to the front line from the capital Destructor four store you're along I Boston is in the Bulls let's go ABC News live America's number one streaming news anytime anywhere streaming 247 straight to you for free thank you for making ABC newsline America's number one streaming news from America's number one news source comes the allnew ABC News app br
eaking news Incredible video faster smarter and it can customize to you and and your interests if you love being in the know you're going to love this experience what all the buzz is about experience the allnew ABC News app download it now ABC News live Prime winner of the Gracie Award for best news program in all of Television stream ABC News live Prime with lindsy Davis week nights on ABC News live y'all tuning in for Taylor Swift you going to be tuning in for Usher Tu you going to do it do it
big God they say Oscar Tony Grammy Emy you should put Super Bowl on there too I'm sure Raymond is going to get shirtless I don't think it'll break any FCC violations go shirtless hey man that's what I do Usher baby Yeah Usher my way to the Super Bowl this is impact by Nightline now streaming on Hulu welcome back to ABC News live first Prince William is speaking out for the first first time about his father King Charles's cancer diagnosis the King has been performing some Royal duties but the pr
ince is taking on more responsibilities ABC News foreign correspondent Maggie rouy has the latest Prince Williams stepping out and stepping up you high the heir to the throne publicly addressing for the first time the health scares that have rocked the royal family I'd like to take this opportunity to say thank you also for the kind messages of support for Catherine and for my father especially in recent days it means a great deal to us all the prince also making headlines with none other than T
om Cruz in attendance is a supporter of the air ambulance charity and Tom if you wouldn't mind not borrowing either of the new helicopters for the next mission impossible it would be appreciated as King Charles recovers from his cancer treatment and Princess Kate recovers from abdominal surgery William is left holding the Royal Reigns he's dealing with a lot personally but he still managed to really put the focus on the charity he even made a joke and he really sent that message of kind of getti
ng on with the job meanwhile his younger brother Prince Harry is back in Los Angeles after a 24-hour trip to London which included a short meeting with his father but no meeting with his brother we were told that William had no plans to see Harry while he was here and I think the fact that that was made clear underlines just how deep those hostilities still are and Diane the king is still in Sandringham but he has been able to keep up with some of his Royal duties and even held his weekly audien
ce with the Prime Minister last night by by phone he also has made a point Diane to say that he wants his cancer diagnosis to raise awareness and now we're seeing the royal family use their Instagram account to post advice and tips to help people who are coping with diagnosis even posting to local charities Diane already starting to make an impact all right ABS news foreign correspondent Maggie rouy thank you and Dartmouth says it will once again require SAT and ACT scores for admission after su
spending the standardized exams because of the pandemic a new study by the university found test scores could have helped less advantag students gain access to the Ivy League school but the move's raising questions about what's to come from other colleges and what it all means for students I want to bring in ABC's Brad milky host of the St here podcast for more Brad let's rewind here for a second because during the pandemic the College Board had to cancel several test rounds of these tests and s
o colleges stopped requiring them and then post pandemic a lot of them have made these test scores optional so how's been working yeah this was sort of framed as a as a pandemic move to you know you didn't know whether kids were taking them in a room with each other or whatever so a lot of schools were like you can just make the test optional don't worry about it some schools though went even further and they said you know this is such a great lowering of a barrier so many students you know who
don't have expensive tutors never were applying to these schools anyway and now they can't you know now that this sort of barrier to entry is removed they actually saw applications go up at schools like Dartmouth and some of these IV League schools and so other schools around the country the UC system no longer even has spots for the SAT scores they don't consider it as part of their application process so that's how much this movement is kind of Taken Fire based on what was a pandemic change th
at is now more or less common in a lot of schools except Dartmouth says actually we'd like to go back please so what's the takeaway here for students and what does this do for the debate of whether standardized test favor privileged students or not well it's a it's a big debate and it's been a big debate because there is this question about is the SAT a does it help you distinguish between students or is it just a barrier of Entry that keeps certain students out the door who are not applying to
your school in the first place Dartmouth put together the study and they said actually we noticed that a lot of students were withholding their SAT scores it's optional now it's you don't have to put them and a lot of students weren't and they would have helped those students had they put their SAT scores in they thought they weren't good enough Dartmouth is like they they were good enough this would have been an extra sort of feather in your cap you would have gotten in instead we find ourselve
s admitting more like a less diverse student population because we're not seeing the scores however I talked to an expert at the University of Washington who basically said this leaves out a key part of the story here which is that Darkness applications skyrocketed they went from 20,000 to 30,000 applicants what that tells you he says is it's not that if you require SAT scores from all these kids that suddenly now yes you'll see all their scores now you can compare them more accurately is that y
ou just want to have as many students applying that's what it tells you is that these students once they saw that barrier reduced and were like oh I don't have to I don't have to bring my SAT score in here great I'll actually apply a lot of people are concerned that those students will now sort of go back into hiding as it were interesting and before you go I want to ask you about this target controversy because a history teacher went on Tik Tok to point out some errors on a product that had civ
il rights leaders on it talk to me about this so so Target unveiled this product that was made by a publisher you know like Target buys lots of products and they put them on shelves this was sort of a sticker magnet set celebrating black history and the icons of black history throughout the years cter G Woodson WB Deo U Booker T Washington this teacher realizes a lot of the names are next to the wrong pictures for these people apparently this had not gone through enough checks no yeah the qualit
y control didn't quite and this is the thing and and and if you know these faces and these names at all like web de boy rocks a really cool mustache right that's not next to Booker like Booker Washington like cutting striking figure these are not difficult people to tell apart and yet for someone who put out this this sticker set it was and so this history teacher sort of her post went viral and target has removed it from the shelves saying they've told the publisher that the uh the errors were
there wow all right ABC's Brad milky thank you and to hear Brad dive into more stories like these check out the start here podcast new episodes drop every weekday morning at 6 Eastern wherever you get your podcasts [Music] [Applause] [Music] a recent poll finds only 27% of Americans say the US History they were taught in school reflected a full and accurate account of the role of African-Americans the Quinnipiac University poll also shows 66% say what they learned fell short so as we celebrate B
lack History Month we want to take some time to discuss the lesser-known moments in American history often not t in school assistant professor at nyu's journalism Institute and co-host of the podcast uncivil jerai kumika joins me now for more on this professor thanks so much for coming on such an important topic and I wanted to get first your reaction to these poll results two-thirds of Americans here are saying they weren't taught enough about the struggles and the triumphs of African-Americans
in the US why do you think that is why isn't this being taught well thank you so much for having me on and uh you know I got to say I'm not surprised to see those answers even though they are alarming um because when I made un civil in another podcast that I work on seen on radio these deal with difficult moments in history and I worried that maybe some Americans would feel Disturbed but the overwhelming feedback we got was people saying we want more of this why didn't I learn this in school an
d they actually feel really uh happy to have a correct history even if it's challenging and challenges what they thought they knew now you say this isn't just Omission but that there's a history of telling a false mythological history of our country can you explain what you mean by that well you know I think that um many people over the years have understood that you know you know a lot of the you know leaders politicians people who had particular kinds of political Stakes have understood that w
hen people learn Real History it affects how they function in the world so so if you understand the history of human rights violations and war crimes you you will accurately conclude that the US is currently committing war crimes just as the icj did if you learn about the history of voting right suppression you will uh learn you will learn that maybe you don't want to you know you it's important to protect voting rights and all kinds of other things so people realize that history factors in to h
ow people show up and how they and how they struggle and so there's a history of banning that you could go back to Uncle Tom's Cabin this was a powerful abolitionist book that that sort of you know laid out what what slavery was really all about and it was and people tried to ban it why would you want to ban an accurate history and account of what of what was actually going on now there's been a wave of laws implemented in recent years that restrict certain lessons on race in classrooms ac acros
s the country what do you make of the debate surrounding that and can you quickly also touch on a few stories that aren't being taught in the classroom that you think people need to know well I I think that you know if we're going to solve the problems that are going to confront us right now we have many difficult problems we have to have an accurate account of how we got to this moment and I also know that people want to feel inspired right they want to by the most you know compelling moments t
he moments where people were courageous the moments where people didn't do what was convenient and there's so many examples in history you know I um often talk about the story of someone like Robert Smalls but I think even if you think about the Civil Rights Movement we talk about Martin Luther King but there was a powerful role that black women played in that Montgomery Bus Boycott and in the civil rights movement in general I think with so many people talking about unions and trying to look at
their working conditions the history of Labor which has you know you know which involves both black people I think about um drum and the auto workers um you know Union there I mean there's so many powerful moments that people don't know enough about and or or Freedom Summer right you talk about the the whole struggle of of Freedom Summer and these are histories that brought people together across racial lines to struggle to dismantle the power that was oppressing people right it's it's so I thi
nk in that regard it's just real history it's real factual history I'm fine with calling it black history but if you don't know that black history then you don't know the real history and thankfully a lot of Americans are really excited to get it all right assistant professor at nyu's journalism Institute chenai kumano we so appreciate your time today Professor thank you thank you coming up just three days until super Super Bowl Sunday how Vegas is preparing for the hundreds of thousands of visi
tors and what Travis Kelce is saying about the Chiefs becoming a dynasty and stay with ABC News live as the Supreme Court hears arguments on whether former president Trump can be banned from the 2024 ballot we'll listen to those arguments live when they [Music] happen this is ABC News live the crush of families here in Poland Refugee centers in Putin Russia on the ground in Ukraine close to the front line from the capital destructive Cat 4 storm along I Boston is in the bull let's go ABC News li
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live my faite show with so much at stake so much on the line more Americans turn here than any other newscast ABC News World News Tonight with David mure America's number one most watched newscast across all of Television inside that pen is a slice of human brain I've never seen a place like this in my life oh my god look [Music] wow reporting from the US Mexico border in California I'm Jack Le wherever the story is we'll take you there you're streaming ABC News [Music] live welcome back to ABC
News live excitement is growing across the country for this weekend's Super Bowl Las Vegas has been beefing up security for the big game and will reev is there in Vegas with more on what's being done to keep people safe Super Bowl 58 is just 3 days away 330,000 people are expected to descend on Las Vegas this weekend and security is tight there are no known credible specific threats to the Super Bowl or to Las Vegas at this time but we are Vigilant and we are prepared 30 federal state and local
law enforcement agencies are tasked with keeping the city and the game safe I would just say to you that no city is very prepared and an unexpected security risk presenting itself in broad daylight yesterday this man seemed climbing 366 ft to the top of Las Vegas's sparkling new attraction the sphere the incident disrupting traffic the man was detained we know that people are going to test us we know people are going to try things as we sit here today there's a individual for a publicity stunt t
hat just tried to are climbing up the top of the sphere your First Responders are all over there we're taking care of it as for the game it can't come soon enough for anyone particularly the players obviously um we have the media and stuff like that you have to do but at the same time it's a normal week now we're going to get back to practice um and do what we would do for a normal game day the Chiefs have a chance to make their mark on history as the first team to repeat in 19 years I think thr
ee is a is a lucky number you one is anybody can be one it done I think two is is special but three is when you solidify yourself as as a dynasty for sure is p the 49ers seeking to avenge their 2020 Super Bowl loss to Kansas City Jerry Rice down San Francisco and bring the Super Bowl home to the Bay Area for the first time since 1995 at the end of the day man like this is this is something that we've all dreamed of growing up and got to be grateful for it and have fun with [Applause] it our than
ks to Will reev and here's some of the top headlines we're watching right now the military says the five Marines who went missing in Southern California are confirmed dead that ends a two-day search and rescue operation that started when their helicopter was reported overdue after not arriving near San Diego the super stallion was discovered early Wednesday morning after rescue crews were delayed due to poor weather conditions the identities of those Fallen Marines have not yet been released Cen
tral Command says the US carried out an air strike in Baghdad targeting a senior leader of an Iranian backed militia in Iraq a Us official told ABC News the air strike was part of the retaliatory actions following the deadly attack on the tower 22 base in Jordan that kills three American soldiers a Hezbollah paramilitary group has released a statement vowing to respond at the quote appropriate time and place the Icelandic Coast Guard says a volcano has erupted in Iceland for the third time in tw
o months sending lava juts as high as 250 ft into the air this one hit in the southwestern part of the country near the town of grindvik where homes had been destroyed from the flow of lava during a previous eruption local officials say the lava flow appears to be slightly less than in those past eruptions thanks for streaming with us I'm Diane Meo ABC News live is here for you anytime with the latest news contact and Analysis we'll be right [Applause] back y'all tuning in for Taylor Swift you g
oing to be tuning in for Usher Tu you going to do it do it big oh my they say Oscar Tony Grammy Emy you should put Super Bowl on there too Usher Raymond is going to get shirtless I don't think it'll break any FCC violations go shirtless hey man that's what I do it's Usher baby Yeah Usher my way to the Super Bowl this is impact by Nightline now streaming on Hulu with so much at stake so much on the line more Americans turn here than any other newscast ABC News World News Tonight with David mure A
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ht a dangerous ice storm is impacting in the morning commute what's happening today escalating tensions in the Middle East what people are talking about the migrant crisis fast straight forward with some fun in between how does billionaire sound sounds good to me the Moose started chasing a dog first thing in the morning America this morning America's number one early morning news on ABC News live Whenever Wherever news breaks it's so important to always remember that lives are changed here in L
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let's get right to our top story the Supreme Court is set to hear arguments over whether former president Trump can be blocked from the ballot for his role in January 6th the 14th Amendment bars anyone who's previously taken the oath of office from holding office again if they've engaged in Insurrection or Rebellion against the Constitution a watchdog group representing voters in Colorado sued alleged Trump's actions surrounding the attack on the capital breached that clause and the Colorado Sup
reme Court agreed removing Trump from the state's ballot similar efforts have also unfolded in more than a dozen states with two blocking Trump from their ballots and others allowing him to stay on now the US Supreme Court could decide once and for all whether the former president is eligible for reelection senior National correspondent Terry Moran joins me outside the Supreme Court now along with ABC News executive editorial producer John santui and ABC News Supreme Court contributor Kate Shaw
for more John let's start with the stakes here how significant is this and what is at stake for the former president in this case well listen the reality is if Donald Trump is thrown off the ballot in one state could it be something that gets repeated in other states and you mentioned right there at the top 34 other states have had situations like this that voters party officials others have filed efforts to get Donald Trump off the ballot haven't been successful outside of Colorado or Maine at
the moment and Colorado is the first test case that is gotten to the Supreme Court at this Magnum we haven't had a case like this Diane since Bush versus Gore in 2000's election so to think that Donald Trump's uh possibility of being thrown off a ballot is going to go before a supreme court a supreme court which we should remind our viewers three of those nine judges were appointed by Donald Trump so in a world that his judges as Donald Trump refers to them could be judging whether or not he's o
n the ballot or not it's historic it's Terry you covered the Supreme Court's pivotal Bush vigore decision in 2000 how do you think this compares to that uh it's very very different in in in several ways well one there were off-ramps for the Supreme Court in Bush versus Gore they did not have to decide that case and that presidential election awarding Victory to to uh George W bush there there were still votes being counted there was a federal law that was designed to take care of conflicts and a
rguments over the exact thing that was happening in Florida but the Supreme Court felt that because of the timeline and their own sense of judicial Supremacy that they had to decide that case it really injured the Court's standing with the public uh and in this case there's no offramp it's up to them they have to decide this case uh the with regarding Donald Trump the other thing it was a more innocent time one cannot imagine the court stepping in and doing doing something like that today after
January 6 after all this country has been through it was a very different time and a very different case Kate what will the justices have to have to consider here and will they need to determine whether Trump engaged in Insurrection in order to rule there are you know at least a dozen distinct legal questions that the court could discuss today answer in the opinion it finally issues is the presidency even an office under section three of the 14th Amendment did Trump previously take an oath is th
e presidential oath different from other kinds of Oaths officials take and critically Diane the question you ask was January 6th or Donald Trump's involvement in January 6th an Insurrection um those are three of the many questions the court I think we'll grapple with another is whether this part of the Constitution requires Congress to pass a statute to actually implement it or whether it has force on its own um and you know the way this case is set up the challengers the ones who are trying to
keep Trump off the the ballot essentially need to win each and every one of these distinct legal questions if Trump wins one he very likely will prevail and the court will reverse the Colorado Supreme Court meaning he can appear on the Colorado ballot depending on how they write the opinion that might not resolve the question for the rest of this year and for all time it might be narrow um but you know it's it's a case going in that the advantage is certainly with Trump given the number of legal
questions and yet I think there's a very strong argument and a pretty broad agreement though not unanimity among historians and Scholars that the argument for keeping Trump off the ballot is a very strong one on the merits Terry more than 1,00 people have been charged for their roles in the January 6th attack on the capital prosecutors have secured more than 800 convictions including some for felony charges like assaulting police and even seditious conspiracy so what have those cases found abou
t whether the January 6th attack was an Insurrection or just a riot and how could that impact this case you know Diane I think those the statistics are going to have a big impact on this courtroom and I expect Donald Trump's lawyers to raise them because of all those charges 800 guilty Polie secured by Biden's Department of Justice the special counsel Jack Smith uh within the Department of Justice not one person including Donald Trump has been charged with the federal crime of insurrection they
might find that relevant and John former president Trump has downplayed the violence on January 6th he's claims his supporters post zero threat he calls those convicted of attacking the US capital j6 hostages are those comments could those comments come into play here in this Cas 100% because listen I mean the reality is that what these voters these six voters in Colorado have said Diane it's because of Donald Trump's actions and comments around January 6 that they felt compelled to bring this c
ase it was the argument that swayed the Colorado Supreme Court that Donald Trump should not be on the ballot because of those actions because of those comments and the reality is Donald Trump as you just noted hasn't stopped he has said those January 6 hostages as he refers them he would pardon them should he get another turn in the Oval Office so all of that plays into the conversation today and you've got to imagine between the voters the solicitor general of Colorado they are absolutely going
to bring that up in that room today and Kate the Colorado Supreme Court Justices who dissented in that 4-3 ruling raised the issue of due process one wrote that the should be dismissed in the absence of an Insurrection related conviction so how do you expect your process to come into play in today's arguments it's one of the other important legal questions in the case was the process afforded to Trump in the trial court in Colorado which was where the evidence was taken and the decision was mad
e that this really was Insurrection for constitutional purposes so was that process enough to comply with the Constitution's guarantees of due process that's another way in which the Supreme Court might find in you know a narrow sense that the Colorado Supreme Court was wrong and that's one of the bases for ruling for Trump here that wouldn't resolve the question forever because if the court here says that wasn't enough process and maybe you need something more formal maybe you need an actual co
nviction it there's nothing to stop a state from trying to do something more robust that might satisfy the demands of due process now a criminal conviction I think is not something that could happen for Insurrection um but a state could try again and to try to do more fact development so that is another of the many legal issues that the case involves and Terry Trump's attorneys are expected to argue that he was not engaged in Insurrection they're also expected to focus on some language in the 14
th Amendment as to whether or not it actually applies to him what are you listening for from Trump's side of this well I think you're right Diane both of those arguments will be made one of the reasons it seems that special counsel Jack Smith did not charge Donald Trump with Insurrection is because the evidence that he participated in the Insurrection is in part his speech to the crowd out there on the mall in front of me uh and that speech his first amendment protected speech he also included a
n admonition to the protesters to be peaceful in their actions it's a tough case to make there's that and as for the question under section of the 14th Amendment the Colorado Supreme Court's decision is wrong reversed for numerous independent reasons the first reason is that President Trump is not covered by section three 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 an
d it does not Encompass elected individuals such as the president or members of Congress this is clear from the commission's Clause the impeachment clause and the appointments Clause Each of which uses officers 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 three and any state that does so is violating the holding of term limits by altering The Constitution's qualifications for federal office the Colorado Supreme Court's decision is no different from a state residency law that requires members of Congress to inhabit the state prior to election day when the Constitution requires only that
members of Congress inhabit the state 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 uh Mr Mitchell would you uh uh you didn't uh uh spend muc
h time uh on your argument with respect to whether or not Section 3 is self-executing so would you address that and and in doing that um your argument is that it's not self-executing but then in that case what would the role of the state be uh uh or is it entirely up to Congress to implement uh the disqualification uh in section three 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 t
hat because a non-self-executing in 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 14th 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 litigant disagree with us on th
at 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 Council um um what if somebody came in to a state Secretary of State's office and said uh um I took the oath specified in section three I participated in an Insurrection um uh and uh I want to be on the ballot can the SEC does the Secretary of State have the authority in that situation t
o say no you're disqualified no the Secretary of State could not do that consistent with term limits because even if the candidate is an admitted 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 14th Amendment where Confederate insurrectionists were elected to congress and sometimes they obtained a waiver sometimes they did not a
nd each house would determine for itself whether to seat that elected insurrectionist because each house is the so judge of the qualifications of its members so if a state banned even an admitted insurrectionist from the ballot it would be adding to an altering the Constitution's qualifications for office because under section three the candidate need only qualify during the time the candidate holds the office to which he's been elected and under your honor is 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 well even though it's pretty unlikely or at least would be difficult uh for an individual who says um you know I I am an insurrectionist and I had taken the oath that would require 2third of votes in Congress right correct well this is a pretty uh unlikely scenario it may be unlikely but no secretary of state is permitted to predict the likelihood of a waiver be
cause 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 so even if somebody comes in and says I'm
I'm a resident of into the Secretary of State's office in Illinois says I'm a resident of Indiana I have been all my life I want to run for office in uh Illinois the secret Secretary of State can't say um uh no you can't 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 sorn declaration or through his own statements that he has no intention of relocating to that state before election day then the secre
tary of state would be enforcing an extent 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 counil 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 correct in fact they do it frequently for taking Clauses here's 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 by an insurrectionist that's correct so under section three that's rig
ht so history proves a lot to me m and to my colleagues generally there's a whole lot of examples of States relying on section three to disqualify um 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 uh stop insurrectionists from taking State office MH and
and so this is a complete preemption in a way that's very rare isn't it well that's the only thing I would disag it's rare under the 14th Amendment oh course it's rare this is this is a one-off situation and you honor the only thing well it is oneoff I don't disagree with you but it's not with with respect to how we've defined self-executing 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 you are becau
se it's not that's right and Griffin so now the question is a very different one in my mind I understand what you're relying on Griffin let's just be very clear Griffin was not a precedential Supreme Court decision that's correct all right it was a circuit court decision by a Justice who when he he becomes a Justice writes in the Davies case um uh he assumed that Jefferson Davies would be ineligible to hold any office particularly the presidency and treated and this is his words section three as
executing itself needing no legislation on the part of Congress to give it effect so you're relying on a non-precedential case by a Justice who later takes back what he said 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 it did away with it later
it did away with it later but at but but that has nothing to say with respect to what section three means can we get to the issue which is I think a one that I go back to that I started with um and and very briefly what sense does it say that states can't enforce section three against their own officials mean I I think L 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 uh Federal officia
ls or can they enforce it against the president those are all three different questions in my mind and the the answer to all three of those questions turns on whether this court agrees with a 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 you're honor suggested unless Congress gives it authority to do so so an presidential decision that relies on policy doesn't look at the language doesn't look at the history doesn't anal
yze anything than the disruption that such a suit would bring you want us to credit as presidential because Congress relied on Griffin Case when it enacted the Enforcement Act of 1870 and established so Mr Mitchell if I may interrupt but 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 is that is that what you're doing here you're not saying that the constitution give
s you this rule it's the kind of combination of Griffin's case plus the way Congress acted after Griffin's case yes that gives you the rule that's exactly right Justice Kagan because we have implementing legislation Congress took up the invitation provided by Griffin's case and established rits of quaranto in the 1870 Enforcement Act later repealed them the only enforcement legislation that's currently on the box is the Insurrection criminal statute section 2383 and when Congress made all of the
se decisions the initial enactment of the Enforcement Act in 1870 the repeal of the quaranto provisions in 1948 all of those were made with Griffin's case as the backdrop the UN please well the understanding was that these congressionally established 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 backround and if I could just understand the argument a little bi
t better suppose that we took all of that 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 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 14th amendment has been treated as self-executing what we would argue and that's hypothetical that your honor has suggested is that there are practical
considerations unique to section 3 that Council in favor of a rule similar to what chief justice Chase spell 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 rid of habus 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 o
fficial act taken not only by this particular judge but by anyone who is an insurrectionist or arguably an insurrectionist under Section 3 that was 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 three of its own Force preempts the state's ability not not necessarily I think not to enforce section3 against its own officers but against Feder
al officers like in a tarble's case kind of way 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 and enforcement mechanism for Section 3 specific to Federal officers we could rely on precedents such as mclung that says that state courts lack the authority to issue mandamus relief against Federal officials why AR those arguments because that doesn't get us that Griffin that only gets you out of state cour
t doesn't get you out of federal and also the holding of Griffin 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 presum to but your arguments please go I was just going to add one last thing I think your argument's a little broader than that because I think if w
e 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 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 qualification
s 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 precedence why would that be an important why would that be permissible because section three refers to the holding of office not running for office an
d 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 uh free from this qual disqualification at an earlier point in time than section three specifies I think the answer to your question justo depends on how you interpret the word enforce in Section 5 and some members of this court such as Justice Scala thought that enforce means you c
an do nothing more than enact legislation that mirrors the 14th Amendment self-executing requirements and you can't go an inch beyond that that's not the current jurist Prudence of this court well you have to decide whether it's congruent and proportional and we would get into the question of whether that would be congruent and proportional 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 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 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 right but I don
't see what is gained by using this term which is used in different context rather than directly addressing what's involved here which is the question of who can enforce section three with respect to a presidential candidate uh the consequences of what the Colorado Supreme Court did some people claim would be quite severe uh would it not permit uh would it not lead to the possibility that other states would say using their choice of law rules and their rules on uh on collateral estole that there
's non-mutual collateral estole 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 I don't think so because Colorado law does not recognize non-mutual collateral estable 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 just Alo 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 that as a matter of fact that President Trump did not have any intent to engage in incitement or make some other finding that differs from what this trial court judge found yeah
exactly so this in this decision the the trial court in Colorado thought that it was uh proper to admit the January 6 report and it also admitted the testimony of an expert who testified about the meaning of certain words and phrases to people who communicate with and among extremists right uh another another state court could reach an opposite conclusion on both of those C other states could conclude that the January 6th report is an admissible hearsay they might also conclude that statements
within the January 6th report were here say even if the report itself is not and they could certainly reach a different conclusion with respect to the expert testimony of Professor SEI perhaps in another state we would have time to produce our own sociology expert who would contradict Professor see you 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 I think they all mu
tually 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 you keep saying term limits um there are
other presidential qualifications in the con Constitution age yes citizenship there's a separate Amendment the 22nd amendment that doesn't permit anyone to run for a second term we have a history of States uh disqualifying not all but some of disqualifying candidates who won't be of age whe if elected we have a history of at least one state disqualifying someone who wasn't a US citizen right um is are your arguments limited to section three not quite the question Jus a Soto myor is whether the s
tate is violating term limits by adding to or altering the extent qualifications for the presidency and the Constitution now the so you want us to say I I'm wondering why the term limits qualification is important to you because are you setting up so that if some president runs for a third term that a state can't disqualify him from the ballot of course a state can disqualify him from the ballot because that is a qualification that is categorical it's not defeasible by Congress so a state is enf
orcing the Constitution when it says you can't appear on our ballot if you've already served two terms as president the same go the same if they're underage when elected and the same if they're not a US citizen the same if they're not well the same if they're not a US 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 an auration well then that would come up that would probably c
ome up to us at some point uh the state would make a decision and say he's ineligible and we would have to decide that question then but my point is um so what adding qualifications to what term limit is your argument based onang I'm just confused okay with respect to the maybe I'll start with the age example if a state like Colorado says you can't appear on our president 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 34y 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 three president Trump needs to qualify during the time that he would hold office and the Colorado Supreme Court is saying to president Trump you have to show that you would qualify under Section 3 now at the time of the election or at the time that we the state supreme court now I 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 constitutional provision governing term limits yes us term limits against Thorton maybe I should call it Thorton instead of term liit I'm sorry does it have something to do with the fact that the particular uh circumstance that you're talking about can change is that what you mean I'm trying to understand the distinction between the provision in the Constitution tion that relates to disqualification on the ba
sis of insurrection behavior and these other Provisions that Justice Sodor points out they all seem to me to be extent uh constitutional requirements so but you're drawing a distinction right I'm drawing a distinction because some of them are categorical what do you mean by categorical whether or not you are an insurrectionist is or is not categorical it is not categorical because because Congress can lift the disability by a two3 vote and there but why does why does that change the initial dete
rmination of whether or not you fall into the category I don't understand the fact that you can be excused from having been uh in the category why does that not make it a categorical uh determination 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 provide
s for him to obtain a waiver from Congress but that's by virtue of the hold right hold office this is correct yeah section three bans him only from holding office it does can I ask you I'm just now that I have the floor um can I ask you to uh address your first argument which is the office officer Point could oh sorry yeah why don't we could we um oh is is that okay if we do this and then we go sure sure sure sure go ahead will there be an opportunity to do officer stuff or should we absolutely
absolutely I just wanted to understand so on on on this Theory what is the sum total of ways that the uh SE that section three can be enforced that that that that that some that somebody out there can say yes there's been a former president who engaged or LED or participated in an Insurrection and so should be disqualified from Office putting aside the officer argument what is the sum total of ways that that enforcement can happen so the answer to that question is going to depend on what your ho
nor 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 quaranto provisions that they initially had in the 18 is that your position yes because we believe Griffin case is correctly decided and should be follow and how does that fit with a lot of the the the answers to the questions that we've been given you said well Congres
s has to have the ability by a two thirds vote to lift the disqualification right um but so too I I would think that that uh provision would would would be in some tension with what you just said because if Congress has the ability to lift the vote by a 2third majority then surely it can't be right that one house of Congress can do the exact same thing by a simple majority yeah there certainly is some tension Justice Kagan and some commentators have pointed this out Professor bod and Professor P
aulson criticized Griff very well we don't think it's we don't think this problem is fatal because to us the the 2third 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 Ritz of quaranto each Federal prosecutor had the authority to bring a quo warranto RIT against an incumbent official and seek his alster from Office under section three but it was still subject to that amnesty provision in section three of the 14th Amendment so we do acknowledge the tension but we don't think that's an insurmountable obstacle I don't even see why there's why there's ATT tension if you anal
ogize the the lifting by Congress of the disqualification by a 2third vote to a pardon then surely one would not argue that the fact that the president or Governor can pardon someone from a criminal conviction or a criminal offense means that the person couldn't be prosecuted in the first place for the criminal offense that's right right yes so I don't see what the tension is they're two separate things did the person engage in this activity which is prohibited and second even if the person did
engage in the activity are there reasons why the disqualification or the should be lifted or the pardon should be granted 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 that yeah I don't see there 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 okay it's not you're what's what's what's intention is that you would have the exact same actor and say look that actor can lift the disqualification by a 2third 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 2third it can do that just by a simple majority of one house or or it could do that by doing nothing at all if if the holding of Griffin's case is correct cuz just Congre
ssional will the only thing it takes to have no action is you know is uh you know half plus one saying we don't feel like it 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 don't you think Griffin's case is also uh relevant to trying to figure out what the original um public meaning of section three of the 14th Amendment is it's by the Chief Justice of the United States a year after the 14th Amendment mment th
at seems to me highly probative of what the meaning or understanding of that language otherwise elusive language is 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 and 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 but I think your honor is right this is I why don't you finish your sentence 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 Cas as completely emblematic of the original understanding now why don't we move on to the officer uh Point certainly and Justice Jackson I think you yes so I had a question about it because you're making a textualist argument and as I look at uh section three I see two parts of the first sentence of section three um the first is a list of o
ffice 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 of SE okay for sure 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 and that the p a person who previously took the presidential oath is not subject to
disqualification we are arguing both your honor I don't see that in your brief I see a lot of focus on the second but not on the first there is definitely more focus on the second and we acknowledge that we have a somewhat heavier lift on the first point just why it seems to me that you have a list and president is not on it that that's certainly an argument in our favor but they're also with respect to officer of the United States that's used repeatedly in the constitution in the commission's
clause in the appointments clause and also in the impeachment clause and every time it appears it's used in a way that clearly excludes no I understand but that's the second argument so the first argument is we have a list of offices yes that a person is barred from uh uh holding right under your theory or under the the language of and we see it begins with Senator representative elector of President and Vice President and all other civil or Military Officers offices under the United is under th
e United States but the word president or vice president does not in uh not appear specifically to that list so I guess I'm trying to understand are you giving up that argument and if so why 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 litigant claim that they are encompassed within the meaning of the phrase office under the United States and do you agree that that that that um the framers would have put such a hi
gh and significant and important office sort of smuggled it in through that catchall phrase we don't agree at all that's why we're still making the argument that the presiden C is excluded from the covered offices that are listed at the beginning of s I'm sorry your brief says you didn't take a position um on that point I'm sorry and your brief said uh I don't have the the site I I apologize um you don't affirmatively argue that point I think is what your brief said in the blue yes well we certa
inly argued it in the reply brief and I'll have to look at 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 would we necessarily have to say I mean I thought I thought the point was that section three was unique that there was something happening with section three that could
explain why certain offices were left off or whatnot perhaps but there are also implications from other parts of the Constitution which really help us on the officer of the United States argument in that second part of Section 3 but somewhat cut against us when it comes to office under the United States and the Anderson lians point this out in footnote 9 in the red brief where they say if this court were to say the president C is an excluded office under the United States that could imply for e
xample the president is not covered by theum Mr michell stepping back on this a lot hinges on the difference between in your argument between the term office and officer yes and I I I guess I'm wondering what theory do you have from an original understanding or a textualist perspective why those two terms so closely related would carry such different weight because it's clear from the constitutional text that there are officers that do not hold offices under the United States for example the spe
aker of the house and the president prot tempor they're described as officers in article one 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 members of Congress can't hold offices 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 not of which we're aware so these are textual inferences that we're drawing from constitutional structure intrat textualist analysis but we aren't relying nece
ssarily 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 swor
e an oath some people wanted to go further and ban them even from voting thank you thank you Council I just have one very technical question uh the statute in 1870 um if it were still in effect would require you to uh modify your arguments uh slightly it was repealed as you say in 1948 do I I tried to find it but I couldn't do you know why it was repealed no I we don't know why it looks like it was done as part of a reorganization of the US code so it doesn't appear there was any policy motivati
on behind that decision I think a lot of things got repealed during this 1948 decisions that were made okay Justice Thomas anything further justice Alo is there any history of States using section three as a way to Bar federal office holders not that I'm aware Justice Alo because of Griffin's case I me Griffin's case has been the law 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 thank you justice s mayor I just want to pin down your principal argument on section three 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 um your principal argument is that the president is not an officer of the United States correct 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 argumen
t we have that he's excluded the president as an officer of the United States is the stronger of the two textually and has fewer implications for other Constitution bit of a Jerry Mard rule isn't it designed to benefit only your client I certainly wouldn't call it Jerry Mander that implies nefarious you didn't make it up I know some Scholars have been discussing it but just so we're clear under that reading only um only the petitioner is disqualified because virtually every other president excep
t Washington um has taken a oath of to support the Constitution correct that's right every president to our knowledge every other President John Adams might also be excluded because he took the oath as 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 would that be true if we were to hold more narrowly um in a reversal that it's not section three that's an issue but Thor
ton and others as to whether section three can be enforced by States against the president that would extend to every presidential candidate not exactly not yours okay thank you Justice Kagan and if I could just understand I mean given that you say you don't have a lot of evidence that uh the founding gen or the generation that we're looking at is really thinking about office versus officer of the United States I mean it it would um suggest that we should ask what is that a rule a sensible one y
ou know if they had thought about it what reason would they have given for that rule and it does seem as though there uh there's no particular reason and you can think of lots of reasons for the contrary to say that the only people who have engaged in Insurrection who were not disqualified from Office are um presidents who have not held high office before why would that rule exist I don't think there is a good rationale given that this was compromised legislation and sometimes this happens with
statutory compromises and even constitutional compromises there's an agreed upon set of words that can pass both houses of Congress but different legislators may have had goals and motivations they didn't all get their way in a compromise everyone goes away miserable but this was the text that was settled on 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 officials there's just no way he can be covered under s
ection three the court would have to reject our officer argument to get to that point and is there any better reason if he go um to the office argument that Justice Jackson was suggesting is there any better reason for saying that an insurrectionist cannot hold the whole panoply of offices in the United States but we're perfectly fine with that insurrectionist being president I think that's an even tougher argument for us to make as a policy matter cuz one would think of all offices the presiden
cy would be the one you'd want to keep out the Confederate insurrectionist 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 thank you thanks just Gorsuch want to respond to some of the specific textual arguments on the officer of with respect to the appointments Clause the impeachment
clause and some of the others yeah so the way let's start with I'll start with the commission ball has been bouncing on that back and forth and I wanted to see where you landed today there three different textual inferences that could be drawn from each of those Provisions your honor just mentioned but the commission's 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 p
resident doesn't commission himself and he can't commission himself so that's one of the first problems I think the Anderson litigant are trying to say you know there's somehow an implied exception there because the president obviously can't commission himself so we should constr 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 on
ly sensible distinction that we can see given the language of the commission's 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 H High crimes and misdemeanors the president and the vice preside
nt 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 2 neither is the vice president neither are members of Congress so they can't be officers either and how does Article 1 Section 6 fit into this discussion and this is about officers being in the line of succession yes exactly right so you have to be an officer to be in the line of succession we have a federal statute that puts the speak
er and the president prot temporary 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 2 so there is this gap between the term officer and the phrase officers of the United States reinforcing the idea that officers of the United States is is a term of art that doesn't refers just to federal office holders which is what the Ander
son litigant are claiming but refers only to those who are appointed not to those who are elected thank you justice Kavanaugh I just uh make sure I understand how you're using Griffin's case again um section three 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 uh that only Congress has the authority to enforce that uh that could be evidence as you sa
y of the original public meaning at least some evidence it's a precedent although not binding but your point then is it's reinforced because Congress itself relies on that precedent in the Enforcement Act of 1870 and forms the backdrop uh against which Congress does legislate and then as Justice Alo 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 i
n the year since so whether that's a federalist 37 liquidation argument it all reinforces uh what happened back in 1868 1869 and 1870 all right you want to add to that alter that no I think that's exactly right and the last part you mentioned J honor is crucial to our argument that Congress relied on Griffin's case 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 it's a form of implied preemption almost see clamor implicit preemption of other remedies because Congress made these decisions in explicit Reliance on Griffin's case 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 it should be yes unless Congress decides to en act a statute which we can't 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 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 understood asking a question about the theory of 2383 thank you thank you g spirit so Griffin's case was a collateral proceeding so it's havest relief yes could Griffin have so even if sec
tion three is not a basis for collateral relief in habius which was new at the time could Griffin have raised at his trial or in direct appeal the argument that sheffy judge sheffy 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 no why 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 is suggested well why like I s
aid Griffin's case I mean I think there's some language that might be a little bit broad but at bottom Griffin's case is about a collateral habius proceeding and Griffin had brought his case after the fact he needed a cause of action why would didn't it work in a trial for him to challenge sheff's constitutional ability to adjudicate his case what Griffin's case holds is that only Congress can provide the means of enforcing Section 3 and under your honor is 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 okay let's assume that I disagree with you about the officer argument so section three covers president Trump um let's say that Congress enacts a quo warranto um provision that would allow a 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 in
the 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 warto action 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 rep part against State officials and your honorous impeachment hypothetical
would apply not only to the president but any Federal Officer of the United States 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 well I don't think anybody did argue it I guess what I'm asking is you know you said it's congress's exclusive Province and you also said that it has to apply you know after one is holding office is elected and I'm asking whether then the implication of your argument is that Congre
ss could not enact such a provision that applied against federal office holders that were covered by section three as opposed to State ones I believe they could and the impeachment Clause says that the president the vice president and all civil 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 o
ther relevant precedent is stored against leair 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 federal official okay let me just ask one question
and this is just a point of clarification um does President Trump have any kind of dup process right here I mean I'm 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 opport
unity to be heard is that right he had no due process right we made that argument below we did not make that in our briefs to this court for several reasons I me your honor is I think suggesting and this is correct that the proceedings below to put it charitably were highly irregular well I wasn't suggesting that I was just Sor the question seems to suggest that there might be due process issues but we didn't develop that argument in this court for several reasons winning on due process doesn't
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 ballot okay thank you justice Jackson going back to um 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 14th Amendment actually prov
ides the reason for why the presidency may not be included and by that I mean um I didn't see any evidence that the presidency was top of mine for the framers when they were drafting uh Section 3 because they were actually dealing with a different issue um 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 insurrectionist 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 uh the states in Congress and that's a very different lens if your concern is trying to make sure that these people don't come back through the state apparatus and control the government in that direction seems to me very different than the worry that an insurrectionist will seize control of the entire national government through the presidency and so I just am surpr
ised that you would given the text of this the 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 there there is some evidence to suggest that just is there any evidence to suggest that the presidency was what they were focused on there is some evidence of that there were people saying we don't want Jefferson Davis to be elected Ed president and there was also
one of the drafts of Section 3 specifically mentioned the presidency and the vice presidency but it wasn't but it wasn't the final it final it wasn't yes 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 we just look at the historical evidence and pick the evidence that we like and interpret it tendentiously because the ot
her side can come back with us and throw this counter failing 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 all right let me ask you another question about um the states because you have forcefully made an argument about the states not being in able to enforce Section 3 so if we agree with you on that um what happens next I mean I thought you also wanted us to end the litigatio
n um so is there a possibility that this case continues in federal court if that's our conclusion usion I don't see how it could unless Congress were to enact a statute in response to this Court's so your point is that it would we would have to say Congressional enacting legislation um is necessary for either state or federal enforcement that's correct all right final question um the Colorado Supreme Court concluded that the violent attempts of the petitioner supporters uh in this case to Halt t
he count uh on January 6th qualified as an insurrection uh as defined by section three and I read your opening brief to accept uh that those events counted as an interection um but then your repes seemed to suggest that they were not so what is your position to that 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 so why would this
not be an in what is your argument that it's not your reply brief says that it wasn't because I think you say um it did not involve an organized attempt to overthrow the government so that's one 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 point is that a chaotic effort to overthrow the government is not an Insurrection no we didn't concede that it's an effort to overthrow the g
overnment either Justice Jackson right 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 3K because thanks thank you Council thank [Music] you Mr Murray Mr chief justice and may it please the court we are here because for the first time since the War of 1812 our our nation's capital came under violent assault for the first time in history t
he 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 three that would apply to him and to him alone he says Section 3 disqualifies all oath-breaking insurrectionists except a former president who never befor
e held other state or federal office there is no possible rationale for such an exemption and the court should reject the F the claim that the framers made an extraordinary mistake section three uses deliberately broad language to cover all positions of federal power requiring an oath to the constit tion 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 sa
me 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 2 and the the 10th Amendment states have the power to ensure that their citizens electoral votes are not wasted on a candidate who is constitutionally barred from holding office states are allowed to safeguard their ballots by excluding those who are underage 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 uh do you have uh contemporaneous examples um and by contemporaneous I mean shortly after the adoption of the 14th Amendment where the states uh disqualified National candidates not its own candidates but National candidates the only example I can think of Justice Thomas is the example of governor of of uh Congressman Christie who was elected in
Georgia in I believe 1868 and the governor of Georgia refused or or CL declined to certify the results of that election because Mr Christie was disqualified but I think it's it's not surprising that there are few examples because we didn't have ballots in the same way back then candidates were either right in or 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 qualifie
d unlike the processes that we have now that states have created under their Article 1 and Article 2 powers to run elections but it would seem that particularly uh uh after reconstruction uh and after the compromise of 1877 and during the period of redeemers that you would have that kind of conflict there were 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 seemed it that would suggest that there w
ould at least be a few examples of uh national uh candidates being uh disqualified if your reading is correct well there were certainly National candidates who were disqualified by Congress refusing to seat them I understand that but that's not this case I'm T did the states disqualify them that's what we're talking about here I understand Congress would not seat them other than the example I gave no but again your honor that that's not surprising because there wouldn't have been States certainl
y wouldn't have the author to remove a city what the purpose of the what was the purpose of the of section three uh states were sending people uh the 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 well you're honor the examples our states excluded many candidates fo
r State office individuals holding State offices we have a number of published cases of States I understand that I I understand the states controlling State uh elections and state positions what we are talking about here are National candidates uh the I understand uh you look at foner or foot Shelby fooot or mcferson they all talk about about of course the conflict after the Civil War and there were people who felt very strongly about uh retaliating against the South The Radical Republicans uh b
ut 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 uh do you have any examples of this many of those historians have filed briefs in our support in this case may the point that the the idea of the 14th amendment was that both States and the federal government would ensure rights and that if States failed to do so the federal government certainly would also step in but I think the r
eason 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 2 and the 10th Amendment to run presidential elections they didn't use that power to police ballot access until about the 1890s and by the 1890s everyone had received amnesty and these issues had become mot so I don't think the history tells us sort of look at Justice Thomas's question sort of from a 30,000 foot level I
mean the whole point of the 14th amendment was to restrict state power right States uh shall not abridge privileges immunity they won't deprive people of property without due process um they won't deny uh equal protection and on the other hand it augmented Federal power under Section Five Congress has power to enforce it so wouldn't that be the last place that you'd look for authorization for the States including Confederate states uh to enforce implicitly authorized to enforce the presidential
election process that that seems to be a position that is at uh at war with the whole thrust of the 14th Amendment and very ahistorical no your honor first we would locate the State's authority to run presidential elections not in the 14th Amendment but in Article 2 and that power is nearly plenary to but you're relying on you you have no Reliance on section three is that what you're saying no your honor certainly we have Reliance on section three in so far as Article 2 gives States this broad p
ower to determine how their electors are selected and that broad power implies the narrower power to enforce federal constitutional qualifications well but the narrower power you're looking for is the power of disqualification right that is a very specific power in the 14th Amendment and you're saying that was implicitly extended to the states under a clause that doesn't address that at all we would say that nothing in the 14th Amendment takes away from the states their Broad and nearly plenary
power to determine the manner of selecting their electors in the manner that they see fit as this court said in chopo that power is nearly plenary unless something in the Constitution tells States they can't do it and and the structure of the 14th Amendment certainly was intended to expand Federal power and certainly to restrict state power in some ways but states are bound to enforce and apply for example section one of the 14th Amendment and so it's hard to see why States wouldn't be similarly
bound or at least off that's not greater includes the Lesser argument the the states have the power the legislature has the power to choose electors granted uh but just because there's one authorized mean 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 elector argument and bringing it into section three where as the Chief Justice says there's just no his and Justice Thomas there's no historical evidence to support the th
eory of Section 3 nor the overall uh to explain the overall structure of of the 14th Amendment we certainly have a long history in this country of States using their power to determine the manner of selecting presidential electors to enforce other qualifications in the Constitution I 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 2 power I don't see why Section 3 should be treated any differently SE Section 3 speaks in the same when you look at section three 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 uh out whether someone did engage in that and that's all of uh what chief justice Chase f
ocused on a year after the 14th Amendment to say these are difficult questions and you look right at section five of the 14th Amendment as the Chief Justice say said and that tells you Congress has the primary role here uh I think what's different is is the processes the definition uh who decides questions really jump out at you when you look at at section three your response to that well certainly Justice Kavanaugh there has to be some process for determining those questions and then the questi
on becomes does anything in the 14th Amendment say that only Congress can create that process and and section five very clearly is not an exclusive provision it says Congress shall have pass 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 uh to be president again is you know just say it
it sounds awfully National to me um so whatever means there are to enforce it would suggest that they have to be Federal National means why does uh 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 no your honor because ultimately it's th
is 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 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 and 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 c
itizens but for the rest of the nation because Article 2 gives them the power to to appoint their own electors as they see fit but if they're going to use a federal constitutional qualific application as a ballot access determinant then it's creating a federal constitutional question that then this Court decides and other courts other states if if this court affirms the decision below determining that President Trump is ineligible to be president other states would still have to determine what e
ffect that would have on their own State's law and state procedure if we affirmed and we said he was ineligible to be president yes maybe some states would say well you know we're going to keep him on 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 folsome record what if you know the the hearsay rules are you know woffs 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 era review apply and
doesn't that just kind of buckle back into this point that Justice Kagan was making you know that we made with Mr Mitchell too that it just doesn't seem like a state call Three Points your honor the first is that ordinarily of course is Court review 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 but then that's saying that in this context which is very high stakes if we review the facts essentially denovo 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 Co
urt fact finding that's unusual well ultimately president Trump himself urges this court to decide the merits of his eligibility on the factual record here at page two 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 case and again the essence of our case is his own statements and and in particular his own videotaped statements on the ellipse Mr Murray just to C
ircle back to I'm sorry to interrupt but I wanted to before we left it wanted to Circle back to where Justice Kagan uh was um do you agree that the state's Powers here over its ballot for a Federal Officer election have to come from some constitutional Authority members of this court have disagreed read about that I'm asking you the the majority of this court has said that those Powers come from Article 2 uh but we think that the result is the same whether the court locates it in Article 2 or in
a reserved power under the 10th Amendment but but you accept that this court has held you're not contesting this or asking us to revisit that decision in thoron or term limits or whatever you want to call it that it has to come from some federal constitutional Authority no we are not your honor okay and and and here we're not talking about the qualifications Clause right um nobody's talking about whether he's 35 years old or natural born whatever right not not an issue okay we're talking about
something under uh the 14th amendment in section three so that's where you have to find your Authority right we find our Authority in article two in States plenary power to run their election federal election but this is for a federal office it has to come from the Constitution and you're seeking to enforce section three we're suggesting that in their broad power to determine them to select presidential electors in any manner they see fit they can take account of Section 3 and apply Section 3 co
uld they do it without Section 3 could they disqualify somebody for you know on whatever basis they wanted outside of the qualifications Clause that would run into term limits I think I would think so right so it has to come back to section three and if that's true how does that work given that section speaks 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 kn
ow that that you're asking to enforce in an election some context provision of the Constitution that speaks to holding office so it's different than the qualifications clause which is all about who can run and then serve yeah I I don't know that it is different 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 B except for this disability can be removed right under section three that's what's
different about it so thoughts on that 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 6 2021 when President Trump engaged an Insurrection against the Constitution so were his actions after that date before he left office Ultra virus is that is that the where your theory leads well that would raise the separate question of whether one can collaterally attack the actions of a
deao officer and that may be the one place in Griffin's case 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 uh that you can't collaterally attack all official actions of an officer who's holding who's in fact holding the position but just circle back to where we started right that this is a section three your Authority has to come from there and it's about holding office and it's a particular kin
d 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 the cqu that my friend had with Justice Alo 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 pre
sident can pardon somebody for a criminal conviction doesn't make that conviction somehow somehow contingent and I would note that if president Trump were appointed to an office today if he were appointed as a state judge he could not hold that office which shows that the disability exists now and and the fact that Congress has a power to remove the disability doesn't negate the pres 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 2 in fact there was a u a congressional action to permit Confederate officers uh or people who supported the Confederacy to hold office before the 14th Amendment correct so there must have been a thought that there was a an pre-existing disqualification 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 disq
ualified the moment that section 3 was enacted forever unless they received amnesty coun what do you do with the what I would seem to me to be plain consequences of your position if Colorado's uh 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 uh uh different rules about uh evidence maybe the Senate report won't be accepted in others because it's hearsa
y uh maybe it's beyond A Reasonable Doubt whatever in very quick order I would expect um although my predictions have never been correct I would expect that uh you know a goodly number of states will say uh whoever the Democratic candidate is you're off the ballot and others uh for the Republican candidate you're off the ballot and it'll come down to just a handful of states that are going to decide the presidential election that's a pretty daunting consequence well certainly your honor the fact
that there are potential frivolous applications of a constitutional provision isn't a reason well no hold on I mean you might think they're frivolous but probably the people who are bringing them may not think they're frivolous um Insurrection is a broad uh broad term and if there's some debate about it I suppose that will go into the uh 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 som
ething else and what do we do do we wait until near the time of uh uh counting the ballots and sort of go through which states uh are valid and which states aren't 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 it seems to me you're avoiding the question which is other states may have different views about what constitutes Insurrection and no
w 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 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 eff
ort to resist through violence not some ordinary application of state or federal law but the functions mandated by the con on your point 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 upon that understanding which is followed and there's no history contrary
in that period as justi as 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
uh criminal statute but Congress could change it but they have not in 155 years in relevant respects for what you want here today at least no justice Kavanagh 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 well you can I go to that after the uh justo I don't know how much we can infer from the fact that we haven't seen anything like this befor
e and therefore conclude that we're never 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 uh more than a 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 I don't how much you can infer from that certainly but if this court affirms this court can write an opinion that emphasizes how extraordinary Insurrection against
the Constitution is and how rare that is because it requires an assault not just on the application of law but on constitutionally mandated functions themselves like we saw on January 6th a coordinated attempt to to disrupt a function mandated by the 12th Amendment and essential to constitutional trans let me ask you a question about whether the power that you've described just plary really is plenary uh suppose that the outcome of an election for President comes down to the vote of a single st
ate how the electors of the vote of a single state are going to vote and suppose that uh 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 I think there may be principles uh that come into play in terms of after the people have voted that Congress that the state can't chan
ge the rules Midstream I'm not sure because I'm not aware of this court addressing it and certainly as well let's change it so that it's not after the election it's 3 days before the election based on the fact that the polls in that state look bad can they do it I think they probably could under this Court's decision in cha where this court emphasized that for much of American History state legislators picked uh their their own electors and assigned their own electors themselves but of course th
at 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 could I ask you again the question that Justice Gorsuch asked and you to which you responded by Sting the de facto officer Doctrine but suppose we look at that going forward rather than judging uh the validity of an act committed between the time when a president allege
dly 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 uh of the the president in question I'm not sure that anything gives Military Officers the authority to adjudicate effectively the the the legality of the presidency why why not be you say he's disqualified from the moment it happens now I understand the deao officer Doctrine might be used to prohibit people
from seeking judicial remedies for decisions that take place after the date he was disqualified but if he's in fact disqualified from that moment why would would anybody have to obey a direction from him 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 why on wha
t theory because the the section three speaks about disqualification from holding office you say he is disqualified from holding office from the moment it happens correct but nevertheless so it operates you say there's no no legislation necessary I thought that was the whole theory of your case and no procedure it happens automatically well certainly you need a procedure in order to have any remedy to enforce the disqualification which is i that's a whole separate question that's the day facto d
o 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 P president former president in your view would be free to act as he or she wishes without regard to that individual I don't think so because I think again the def facto officer Doctrine would nevertheless come into play to say this is no de facto that would that doesn't work Mr Murray because de facto officer is to ratify the condu
ct that's done afterwards and and and insulated from judicial review put that aside I'm not going to say it again put it aside okay I think justice lead is asking a very different question a more pointed one and more difficult one for you I understand but I think it deserves an answer on your theory would anything compel a lower official to obey an order from in your view the former president I'm imagining a situation where for example a former president was you know a president was elected and
they were 25 and they were ineligible to hold office but nevertheless they were put into that office we're talking about section please don't change the hypothetical okay please don't change the hypothetical I know I like doing it too but please don't do it okay well the point I'm trying to make he's disqualified from the moment he committed an Insurrection whoever it is whichever part he it that that happens boom it happened what would compel and I'm not going to say it again so just try and an
swer the question if you don't have an answer fair enough we'll move on what would compel a lower official to obey an order from that individual because ultimately we have Pro 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 three in light of other Provisions in the Constitution like
impeachment while they hold office impeachment is the only way to validate that they don't have the ability to hold that office and should be removed Mr Murray can I oh um can I just uh ask you about something just Justice Kagan brought up earlier which is the concern about uniformity um and the lack thereof uh if states are permitted to enforce section three in presidential elections and I I guess I didn't really understand your argument or your response to her about that well certainly if Con
gress is concerned about uniformity they can provide for legislation and they can preempt State legislation but you say that's not necessary 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 a 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 no I 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 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 three 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 three yeah and I'll ask you about the history when I get a chance again thank you thank you Council uh justice Thomas Justice alino 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 interest of the United States to provide funds
or release funds that 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 no your honor this court has never interpreted the Aiden Comfort language which also is present in the treason Clause uh 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 now 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 uh perhaps different standards of proof then what would we do 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 well what would we have to decide what is the
appropriate rule of evidence that should be applied in this in this case uh with would we have to decide what is the uh appropriate standard of proof would we give any deference to these findings by State Court judges some of whom may be elected would we have to have our own trial no your honor this court takes the evidentiary record as it 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 I discussed earlier
there's a possibility of a Bose Corp independent review of the fact But ultimately what we have here is an Insurrection that was incited in 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 uh judges in multiple States then what d
o we do 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 which view of what record If This Record if this court had two cases before it and both of the records were sufficient in so far as both sides had the opportunity to present their case and and the essential facts in the record that everyone agreed was sufficient for decision then this court would have to look at the the evidence the evidence presen
ted 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 US 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 well y
ou had an expert just take let's just take that example uh had 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 uh apply dalbert differently and say that this person should not be allowed to express an expert opinion on that question you think that's beyond the realm of imagination not not at all your honor two points on that number one president Trump didn't appeal the admission of that evidence in this cas
e but but number two you know the second point is that Professor SEI really he didn't opine on the meaning of President Trump's words he opined 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 what I'm not taking a position one way or the other about whether uh the expert's testimony should have been admitted or anything like that or the mea
ning 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 and decisions among the states that different states will disqualify different candidates uh but I I I'm not getting a whole lot of help from you about uh how uh this would not be an unmanageable situation if this court writes an opinion affirming on the basis of the indisputable facts of what preside
nt Trump said on January 6 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 Justice Sodor there's two sides to to the other s'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 h
ave the right to enforce or create a cause of action in this situation um they want the flip to say that no but even Congress can't do it because they need implementing legislation address that argument because assume we rule the 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 uh What uh not not then she justice but Circuit Court Justice um Chase said which is that somehow you need implementing legislation like the 187
0 act um you seem to say that's not true because um they could decide not to seat the ex um seat a candidate Etc so I don't know that legislation is necessary and certainly there are historical examples of member of members of Congress under their Artic under congress's article one 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 section three under the Electoral count Reform Act a number of the amas briefs such as those of Professor Ginsburg Hassen 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 Justice Kagan Mr Mary you talked um you relied on the States extensive powers under the elector cause you talked about uh the states having a role in enacting you know typical ballot access Provisions um I guess I guess you know it strikes me t
hat we've put some limits on that and I'll just give you Anderson versus crazy as an example of that where we said in fact uh states are limited and who they can take off a ballot um and um that was a case about minor party candidates but the reason was that one State's decision to take a candidate off the ballot affects everybody else's rights and we talked about the pervasive National interest and the selection of candidates for national office we talked about how an individual State's decisio
n would have an impact Beyond its own borders so if that goes for minor political party candidates why doesn't it go uh for Shor for the situation in this case well certainly constitutional principles like section to reply to everybody but and in in Kell brazy the issue there was a First Amendment question and certainly there's no doubt that State's exercise of their power under Article 2 is constrained by First Amendment principles and and and in in that case the the state law deadlines for whe
n a minor Party candidate got on the ballot just came too soon to be reactive to what major parties had done and therefore risk 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 a state is just trying to enforce an existing qualification that's baked into our constitutional fabric yeah I I I guess you know 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 um 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 um that that that's that state 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 um uh who other citizens get to vote for for president 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 2 power and the Constitution grants them that Brad the effect of that is obvious yes no your honor because different states can have different procedures some states may allow insurrectionists to be on the ballot they may say we're not looking past the papers we're not going to look into federal cons
titutional questions it's the sort of the 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 state's power to enforce uh to preserve their own electors and avoid disenfranchisement of their own citizens thank you Jess Gorsuch haven't had a chance uh to talk about the officer point and I just want to give you an opportunity to do that um Mr Mi
tchell makes the argument that particularly in the commission's clause for example all officers are to be commissioned by the president seems to be all-encompassing that language um and I'm I'm curious to your response to that and along the way if you would um I 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 ter
ms so for example we know that the president protem of the Senate and the Speaker of the House are officers of the United States cuz the Constitution says they are but we also know that they don't hold an office under the United States because of the incompatibility Clause that says they can't so maybe the Constitution to us today to lay reader might look a little odd in distinguishing between office and officer not prepositions nouns but distinction but maybe that's exactly how it works thought
s well I'd start with the idea that the the meaning of officer in the 1780s was the same meaning that it has today which is a person who holds office and certainly in particular context like the commission's Clause it appears that that's referring you know that is referring to a narrower class of officers because we know that there are except it says all well we know that there are classes of officers like the president protm who who who don't get their commissions from the president well that's
because the Constitution elsewhere says that we know that the appointments Clause refers to a class of officers who get their appointment from the Constitution itself rather than from presidential appointment people who get their commissions from the president himself are not commissioned by the president and so if you read the appointments clause in line with the commission's Clause then the commission's Clause is really talking about the president's power if one needs a commission it's the pr
esident who grants it but I think it's important to bring us back to section three in particular because that was 80 years before we get to that though just the distinction between office and officer do you do you agree president's power if one needs a commission it's the president who grants it but I think important to bring us back to section three in particular because that was 80 years before we get to that though just the distinction between office and officer you you agree that the constit
ution does make that distinction particularly with respect to the speaker and president protm the Constitution makes that distinction but the at least in section three an officer of the United States is a person who swears an oath and holds an office now the president proem and the speaker of the house they don't s 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 th
at you agree there are officers who don't hold an office there are officers who who may hold an office but don't swear an oath under article six in that official Capac how can they hold an office under the incompatibility Clause says they can't well I 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 the Constitution
says they're officers in the United States so so there are some instances when you have an officer but not an office those may be an exceptional circumstance but I would thank you you're welcome Justice kavanov the concerns of some question have been H uh the states having such power over uh a national office uh other questions about this different states having different standards of proof and they seem underscored by uh this case at least the dissenting opinion uh below Justice samore uh said
um I've been invol quote 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 end quote and then added quote what transpired in this litigation fell woefully short of what due process demands end quote 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 sta
te would seem to and that that would be U 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 yes your honor but that language was was with respect to Justice samour just not correct that President Trump had a 5-day trial in this case he had the opportunity to call any witnesses that he wanted he h
ad 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 he didn't get he had the opportunity for fact witness depositions he had the opportunity to call witnesses rem
otely 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 okay uh 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 uh 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 um president Trump has not been charged with that so what what are we to make of that two things your honor section 2383 was initially enacted about 6 years before Section 3 it wasn't meant as implementing legislation of related to section 3 and I would emphasize that by the time that s
ection 3 was ratified most Confederates had already received criminal pardon I guess the question is a little bit different which is if the concern you have which I understand is that insurrectionist should not be able to hold federal office there is a tool to ensure that that does not happen namely Federal prosecution of insurrectionists U and if convicted you the Congress made clear you are automatically barred from holding a federal office that tool exists you agree and could be used but has
not uh could be used against someone who uh committed Insurrection you agree with that 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 often times insurrectionists go unpunished as was the case in the Civil War uh and that the least we can do is impose a civil qualification penalty so that even if we don't have the stomach to throw they had the qu warranto provision that was
in effect then from 186 uh 1870 until 1948 but then obviously that dropped out and hasn't been seen uh as necessary um since then last question in trying to figure out what section 3 means and to the extent it's elusive language or vague language what about the idea that um we should think about democracy think about the right of the people to elect uh candidates of their choice of letting the people decide because your position has the effect of disenfranchising uh voters to a significant degre
e and should that be something does that come in when we think about should we read section three this way or read it that way what about the background principle if you agree of democracy 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 and second section three is designed to protect our democracy in that very way the framers o
f 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 writte
n 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 thank you justice Barrett so the general rule is that absent rare circumstances state courts and federal courts share Authority 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 res
olve 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 quaranto provision and then use it to get the Secretary of State or the president or anyone else out of office and I I assume that's because of this principle of structural preemption am I right yes your honor okay so I just want to clarify what that means for your argu
ment that means that your eggs are really in the basket of the elector Clause really in the article one 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 say 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 absolutely States run presidential elections that's very clear from Article 2 once states have selected the electors and the electors have voted states have no more power over the the candidate who has been then nominated for president but until then the states do have the power to adjudicate those issues thank you justice Jackson so when I asked you earlier about the uniformity concern um and the troubling potential disuniformity of having different states en
force section three with respect to presidential elections you seem to um point to history in a certain way you said I think that the framers actually envisioned States enforcing Section 3 um uh at least in some circumstances where there were insurgents and Confederate and I guess in my view of the history I'm wondering really whether presidential elections were such a circumstance that the framers um actually envisioned States enforcing section three with respect to presidential elections as op
posed to senatorial elections Representatives the sort of more local concerns so can you speak to the argument that really section three was about prev preventing the south from rising again in the context of these sort of local elections as opposed to focusing on the presidency 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 right but I'm not making a distinction between ballot access and anything else but the more the more broad point I want to make is that 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 but then why didn't they put the word president in the very enumerated list in section three 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 suggest 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
this came up in the debates in Congress over section three where rever Johnson said why haven't you included pre President and Vice President in the language and Senator moral responds we have look at the language any office under the United States yes but doesn't that at least suggest ambiguity and this sort of ties into Justice Kavanaugh point in other words we had a 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 out uh against democracy well rever Johnson came back and agreed with that reading any office is clear the Constitution says about 20 times I'm not going to that so let me let me let me just say you so your point is that it's that there's no ambiguity it w with with with having a list and not having president in it with having a history that suggests that they were really focused on local concerns in the Sout
h um with this conversation where the legislators actually discussed what looked like an ambiguity you're saying there is no amb ambiguity in section three let me take the point specifically about electors and Senators if I might because I think that's important presidential electors were not covered because they don't hold an office they vote uh and this no I'm talking about the barred office part of this exactly so the B office is if you want to include everybody first you have to specify pres
idential 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's no doubt that senators and representatives are covered given that the constitution suggests 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 all right let me let me ask you I I I appreciate that argument um 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 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 may have to make the the determination after a presidential election if president Trump wins about whether or not he's 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 and there's
no federal uh litigation you would say well that's correct because there is no federal procedure for deciding these issues short of a criminal prosecution thank you thank you [Music] Council [Music] Miss Stevenson Mr chief justice Anderson no Stevenson that's right I'm sorry Mr chief justice and Maya please the court exercising its far-reaching powers under the elector Clause Colorado's legislature specifically directed Colorado's courts to resolve any challenges to the listing of any candidate
on the presidental 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 s
trips 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've 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 is there an express provision uh with respect to that defines uh what a qualified candidate is um no your honor there's not an express provision
when the Colorado Supreme Court looked at this they looked at the uh need to be qualified plus the fact that the this part was so what does it say then if if it's not express how do we get to this issue of qualified candidate um what the court the Colorado Supreme Court did and and I let me if I could have a standing objection I I do want to make the argument that you shouldn't review the Court's um statutory interpretation no I'm just looking at the statute um what the court did was to say that
we have three important Provisions in this section that show that uh candidates have to be qualified first it requires that under 123 um 2A that a political party that wants to participate has to have a qualified candidate it also looked at the fact that the comparable right-in candidates also had to be qualified no but this isn't a right-in candidate so we're actually talking about uh the participation of a political party right we're not talking about the participation of qu of a candidate su
re I think that that the fact that the right in candidate also had to be qualified was confirmatory of the fact that the political party candidate also had to be qualified um and it would be otherwise in Congress to read those things differently so how is section three a qualification um under the reasoning of the Colorado Supreme Court uh no just on the on its face a candidate must have meet all the criteria for eligibility and I don't perceive any distinction between being meeting the eligibil
ity criteria and not being disqualified um there I just don't see any meaningful difference between those two things thank you you you represent the secretary of state right that's corrector 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 uh administratively and what the deputy elections director testified to at the hearing is that if they obtain OB objective knowable information the secretary can act
on that and inform the so the secretary at first decides whether that's objective knowable information uh in some instances in this case the challenge was actually brought before the candidates 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 uh determination because she didn't have the paperwork well what in another case where that wasn't the procedure that was filed somebod
y could maybe they've got a stack of paper saying here's why I think this person is guilty of uh Insurrection it's not a big Insurrection something that you know happened down the down the street but they say this is still an Insurrection I don't know what the standard is for when it arises uh to that I think anything that even presented that level of controversy about one person having a set of facts that they said prove this would send this case to the 113 procedure that we use to resolve ball
ot challenge issues like that um 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 is there a provision for judicial review of Secretary of State's action um both in Colorado and perhaps what you know about other states 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 um I think states have varying degrees of that there
are certainly other states that allow versions of that um and then I don't know whether there are others that or don't I certainly know that there are some that do I think we're told that there are states that do not provide for any judicial review of a secretary's of state's determination is that incorrect no no I think that's right and I think there are some states that actually have no mechanism to come to um I think Justice kagan's point or um there are some states that don't have um any mec
hanism to exclude a disqualified candidate from the ballot at all and I do want to speak to that for just a minute about the um the actual would that be constitutional if uh the the Secretary of State's determination was Final I think so under Article 2 the electric Clause your honor that that would be constitutional States get very brought authority to determine how to run their presidential elections could a state uh 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 uh yes your honor I believe it could under the same elector Clause power that issue would be determined under perhaps a different constitutional provision like the due process clause correct corre the bounds of the electors Clause are other constitutional constraints which would include due process equal protection First Amendment what's the due process right does the candidate have a due
process right what's the liberty interest I think it's um not uh very precisely defined in the case law but I think there is a recognition that there is a liberty interest of a candidate um and and there is some due process interest in and being able to access the ballot 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 certainly yes and I think a lot of times you see that in the first amend
ment context where um candidates can have an issue about com being on the ballot but it's sort of a hybrid oftentimes First Amendment 14th Amendment um qualifications Clause all discussed together let me ask you a question about just followup to Justice Alo 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 could be followed by others would our standard of review of th
e record vary depending on the procedure employed by the state I think this court has tremendous discretion to decide its standard of review and it might be based on the uh process that was employed by an individual State um I think you could exercise the independent review of Bose Corp um that Mr muray talked about or you could give difference where you have a full-blown proceeding like the one here that had all the protections of Rules of Evidence um and cross-examination and things like that
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 day noo review uh I don't think the review should be denovo um however I I am amable 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 Cas of course if it were not a Novo review we could
reach disperate results even on the same record right um I I think that's possible I I take it your position is that this disqualification is really the same as any other disqualification age or residence or what have you that's correct and and and what if uh I were to push back on that and say well this disqualification number one it's in the 14th Amendment and the point of the 14th amendment was to take away certain power from the states number two uh section three itself gives Congress a ver
y definite role which Mr Mitchell says is interfered with by the ability of states to take somebody off the ballot um and uh 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 and our thinking about this qualification as opposed to any other and so your honor I think the trouble with the the categorizing ing the Insurrection issue as as necessarily more difficult as it's just uh an assumption that's
coming up I think because of this case um and again back to the chief Justice's point we could have a very easy case under the 14th Amendment with an avowed insurrectionist who you know came in and wrote on his paperwork I engaged in an Insurrection in violation of the 14th Amendment um and it would be a open and shut case as to whether or not that person would meet the qualifications to be on the Colorado ballot um with respect to your other questions about the 14th Amendment my positions are b
ased on the assumption that um under the 14th Amendment the states have the power to enforce uh section three just like these do other presidential qualifications and I would defer to the elector arguments on those points suppose the state that does recognize non-mutual collateral a stoble 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 that the decision by a court in one state the dec
ision by a single judge whose factual findings are given Defence maybe an elected uh 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 um 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 in particularly some of the Amicus briefs and again under Article 2 there is a huge amount of disparity in candidates that end up
on the ballot on different states in every election um just this election there's a candidate who Colorado excluded from the primary ballot who is on the ballot um in other states even though he is not a natural born citizen and that's just a that's a feature of our process it's not a bug um and then I think with respect to the decision-making and 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 um states have processes for this um and I think we need to let that play out um and accept that there may be some messiness of federalism here because that's what the electors Clause assumes will happen um and if different states apply their principles of of collateral estole and come to different results that's okay and and Congress is can can
act at any time um if if it thinks that it's truly federalism run a up justice Thomas anything further justice Alo well just one further question and it's along the same lines of a lot of other questions we've been told that if what Colorado did here is sustained other states are going to retaliate and they're going to potentially uh exclude uh another candidate from the ballot what about that situation your honor right I think we have to have faith in our system that people will um follow their
election proces processes appropriately um that they will um take realistic views of what Insurrection is under the 14th Amendment um courts will review those decisions this court May review some of them um but I don't think that this court should should take those threats um too seriously in its resolution of this case you don't think that's a serious threat um I I think we have we should proceed on the assumption that it's not a serious St I think we have institutions in place to handle um th
ose types of allegations what what are those institutions um our our uh States their own electoral rules the administrators who enforce those rules the courts that will review those decisions um and up to this court to ultimately review that decision Justice sor uh justice K justice kavanau justice Jackson anything further thank you Council thank you rebuttal Mr [Music] Mitchell both Mr Murray and Miss Stevenson will I heavily on the elector 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 2 must be exercised in a manner consistent with other constitutional provisions and restrictions and justce 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 2's electors Clause to instruct its presidential electors only to vote for white candidates that would violate the equal protection C
lause but nor can it exercise its power in a manner that would violate the Constitutional holding of us term limits against Thorton and they cannot use the electors Clause as an excuse to impose additional qualifications for the presidency that go beyond what the Constitution enumerates that the candidate has for obtaining a congressional waiver there has still been no answer from the Anderson litigant on how to distinguish the Congressional residency cases where the courts of appeals not decisi
ons from this court but the courts of appeals in applying this Court's holding in US 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 still in our view is 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 wou
ld 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 were unconstitutionally appointed under Article 2 and that made decisions under the APA that were attacked as invalid thos
e 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 Tr
ump 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 thank you Council thank you the case is submitted the honorable court is now adjourned until Friday the 16th of February at 10:00 you've been listening to the US Supreme Court hearing arguments on whether former pre
sident Trump could be barred from reelect ction under the 14th Amendment Trump's attorney argued the former president is not covered under Section 3 as an elected official claiming also that he's not an officer of the United States he also said that section three can't apply to a candidate only to those who hold office he said that if the US Supreme Court affirms the Colorado Supreme Court's decision which removed Trump from the ballot in that state that it would quote take away votes of potenti
ally tens of millions of Americans the plaintiff's attorney argued that President Trump disqual if IED himself by trying to disrupt the peaceful transfer of power by engaging in Insurrection against the Constitution he says that ultimately is this court is what this court is going to decide and it's the question of whether Trump's eligibility holds amid that issue for the country so let's bring in senior National correspondent Terry Moran outside the Supreme Court ABC News Supreme Court contribu
tor Kate Shaw and ABC News executive editorial producer John santui Terry what stood out to you from these arguments do you think you got any clues from which way the justices could be leaning by some of their questions here you know Diane in general it's tough to read the te leaves you know the qu the questions sometimes are asked by justices to explore issues but I I I think it's it felt pretty much to me like there is a strong majority uh against Colorado's position that it can disqualify Don
ald Trump from the ballot there now how they get there they might differ uh and if if you have been listening from the beginning of these arguments good on you because a great deal of what the justices did was the work of justices they they it seemed they drilled down on two things one that everybody can understand one that lawyers and judges understand and that's the one they spend the most time on how does this work that was clearly the question again and again in various forms how if Colorado
can do this by what standard under what burden of proof If Colorado does it one way and somebody else does it another way are we supposed to accept that how is the a system where individual states can uh declare someone an insurrectionist by whatever means in Maine it was the Secretary of State just Bang You're an insurrectionist you're out the ballot and in in Colorado there was a five-day trial what's the standard how do we review it what's expected of us the other question that they that the
y were concerned about was democracy and you could hear that especially in Justice Kavanaugh's question Justice Katan Brown Jackson followed up on it which is that why should one state be able to decide for the rest of the country basically the presidential election if first by means of taking uh those electoral votes that that state has away from one candidate uh second by setting a precedent that other states might be able to follow on and uh the answer from the lawyer for Colorado well the th
e law the 14th amendment that we're dealing with is designed to protect elections from insurrection and if it's messy essentially I mean I think he was pinned and wriggling several times under Fierce questioning but his basic answer was this is what the constitution contemplates in order to protect the Democracy from insurrectionists uh and so part of the argument very dense legalistic stuff part of the argument basic democracy stuff yeah we heard the solicitor general they're calling it The mes
siness of federalism and how that's sort of part of the system Kate the justices though they also grilled Trump's attorney on whether Section 3 is self-executing can you explain why that's so important to this case absolutely and I would agree with Terry in general you know this was not the hardest of arguments to read in terms of the tone and tenor of the justices the argument went maybe not surprisingly very well for Donald Trump it does seem as though there is a strong majority maybe even clo
se to a unanimous Court to rule for him on some grounds although I think we do still have to wait and see what W grounds in terms of self-executing right the question here is can Colorado just do this or does Congress have to pass a statute basically implementing the disqualification in article three in the section three of the 14th Amendment and Congress hasn't passed such a statute here so can Colorado essentially initiate this action um and there's some you know there's an early case decided
by a single Supreme Court Justice not the full court suggesting that legislation actually is necessary to implement uh Section 3 actually I think Trump's lawyer didn't solely rely on that case it's called Griffin's case in part because there's other precedent pointing in the other direction but did say a combination of that early case and the fact that Congress after the Civil War after the passage of the 14th Amendment did pass legislation actually implementing with respect to Confederate Rebel
s aspects of the disqualification and then also overrode using a different part of section three that allows Congress to remove the disqualification so Congress did that too so the argument was really Congress did a lot in the early days to implement Section 3 and Congress hasn't done anything here and Colorado can't act unless Congress does first so that's essentially the self-execution argument I think the justices were interested in it I'm not sure if that's the way they will go but a combina
tion of that argument and an argument about the kind of practical consequences of letting a single state make such a dramatic change in the availability of candidates to voters kind of Nationwide or you know the availability of the office of presidency to candidates seemed like something the justices were were really troubled and John you had mentioned it was interesting to hear some of the democratically appointed justices particularly KI Brown Jackson talking about in a sense seeing why this s
ection of the 14th Amendment may not apply well to president and pointing out that it troubled her at one point that the president the Office of the President wasn't mentioned in there that that according to their reading of it it more focused on these electors that could be empowered by Southern States after the Civil War especially to you know cause an Insurrection to to take over the government to influence in some way not so much that one person being the president would suddenly have this G
rand power over all the federal government I think you know for anybody that was expecting today uh to be uh you know let's just say a reanalysis of January 6th the day in the Insurrection you didn't get that what we all got and and Kate and Terry I'm happy to visit you in Supreme Court land usually we don't do this but you know the reality is that today was really just a parsing through of the 14th Amendment of the Constitution and anybody that thought you'd get the fireworks of what we usually
see around anything involving Donald Trump in January 6th and the violence that happened up at the capital this was not the day for that all right Terry John Kate thank you so much and keep it right here we will have continuing updates on ABC News live throughout the day and more on this case as well the news never stops stay with us whenever news breaks we are here in Israel a nation at war after that brutal surprise attack by Hamas on the ground in Ukraine reporting from Leon Maine the scene
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en ABC News live Prime we'll take you there stream ABC News live week nights wherever you stream your news only on ABC News live welcome back to ABC News live first former president Trump is speaking after supreme court hearing to discuss the issue of whether or not he can be banned from the ballot in 2024 let's listen Supreme Court beautiful thing to watch in many respects it's unfortunate that we have to go through a thing like that I consider it to be more election interference by the Democra
ts is so unnecessary so I just say that uh in watching the Supreme Court today I thought it was very it's a very beautiful process I hope that democracy in this country will continue uh because right now we have a very very tough situation with all of the radical left ideas with the weaponization of politics they weaponized it like it's never been weaponized before for it's totally illegal but they do it anyway and it has to stop every one of the court cases that I'm involved every single one ci
vil whether it's the attorney generals or the district attorneys you look at fonnie in Georgia they had many meetings with the White House and with the doj they went there eight hour meetings that was all stage that was a phony hoax and now you look at it and it is a phony hoax and hopefully that that case will be dismissed in short order it's a it's a disgrace to this country but they work together with the justice department in the White House and not supposed to do that every one of these cas
es you see comes out of the White House it comes out of Biden it's election interference and it's really very sad uh I thought the presentation today was a very good one I think it was well received I hope it was well received you have millions of people that are out there wanting to vote and and they happen to want to vote for me or the Republican party or whatever you want to however you want to phrase it but I'm the one running and we are leading in every poll we're leading in the uh local po
lls in the state polls and we're leading in the swing state polls and we're leading very big in the National poll so it's been a very great honor we love the country I think the reason we have such big leads frankly is that they loved four years of us compared to the three years plus the three years that they've gone with Biden where you have open borders you have crime nobody's ever seen crime like this what's happening and now the crime is being committed much of it by the migrants that have c
ome in illegally to our country uh I was wondering about that I said you know a lot of these people come out of jails they come out of mental institutions they come out of places that you don't want to know about we don't even know where they come from we don't know who they are where they are they're being dumped in from mental institutions from prisons and jails and many terrorists are coming into our country we're going to be paying a big price they have to stop it they have to close the bord
er by the way the president can do it just by saying I want the Border closed I closed the Border we had the safest Border in the history of our country now we have the most unsafe Border in the history of the world there's never been a a country with a border like this not even a third world country so uh we are again we're going out to Nevada right now we'll be out there some of you are going to be out there with us otherwise you're you're watching former president Trump reacting to a supreme
court hearing arguments over whether he can be blocked from the ballot for his role in January 6th the 14th Amendment bars anyone who's previously taken the oath of office from holding office again if they've engaged in Insurrection or Rebellion against the Constitution a watchdog group representing voters in Colorado sued alleging Trump's actions surrounding the attack on the capital breach that clause and the Colorado Supreme Court agreed removing Trump from the state's ballot a similar effort
s have also folded in more than a dozen states with two blocking Trump from their ballots and others allowing him to stay on now the Supreme Court of the country could decide once and for all whether the former president is eligible for reelection senior National correspondent Terry Moran joins me outside the Supreme Court now along with ABC News political director Rick Klein and ABC News Supreme Court contributor Kate Shaw for more Rick what do you make of Trump's response to this coming right
out of this hearing so I want to thank everybody first a couple of quick fact checks uh this is now veered into becoming a very political speech a lot of the big talking points just including a false claim that he closed the Border where Biden didn't but on the merits of the case he also veered into some severe misinformation by saying uh falsely that the Biden White House is directing all of these legal cases that is not the case I think we've learned about the the separations that are here and
the Biden White House has kept quite a bit of distance from all these cases this amidated directly out of Colorado I think he also is is presuming that the Supreme Court will side with him as our folks have uh have analyzed I think uh correctly today it does appear the court is leaning that way but he's now using it in as a as the political Forum that in some ways he's entitled to I mean this is this is the the former president speaking and he is very much lashing back at a lot of the the build
ing wave of all these different legal cases against them Terry one of the questions uh before the court is whether they can decide this issue broadly for all the states or whether this is a case by case issue I I want to play a clip of Justice Alo addressing that with former president Trump's attorney possibility that other states would say using their choice of law rules and their rules on uh on collateral a stopple that there's non-mutual collateral aole against former president Trump and so t
he 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 conse I don't think so because Colorado law does not recognize non-mutual collateral estable 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 justo gives rise to an even greater concern because if this decision does not have preclusive effect i
n other lawsuits it opens the possibility that a different factual record could be developed so Terry what happens if the Supreme Court decides something pertaining to Colorado but then a case in a different state finds a different set of facts for example if they one decides that Donald Trump did participate in Insurrection and another finds that he didn't right well that they were clearly concerned about the possibility of Chaos in the states around this issue you already have States doing it
differently coming to different conclusions I I am honestly going to leave the ca the the issue of uh mutuality of collateral staple I'm going to leave that staple to Shaw but what I can say based on what we just heard from Justice Helo and and Donald Trump's lawyer is the concern on the court that they are could be faced with that they don't come down with a decision one way or another the 14th amendment can be applied in this way to Donald Trump or not they're going to be confronted with that
parade of horribles that Justice Alo just just pointed out other states are going to follow suit other states might be compelled through litigation that's what collateral stopple is to follow Colorado's action and as a result that this could be a patchwork this this could be an unintended parade of consequences that no one wants I I think the court is looking for sounded to me like the justices were looking for a way to come together to decide this issue for once and for all okay just as katangi
brown Jackson also questioned Trump's attorney on whether they accept that the January 6th attack amounted to an Insurrection let's listen to that moment the Colorado Supreme Court concluded that the violent attempts of the petitioner supporters uh in this case to Halt the count uh on January 6 qualified as an Insurrection uh as defined by section three and I read your opening brief to accept uh that those events counted as an Insurrection um but then your reply seemed to suggest that they were
not so what is your position as to that we never accepted or conceded in our opening brief that this was an Insurrection what we said in our opening brief was President Trump did not engage in any act that can plausibly be characterized as Insurrection so why would not be an in what is your argument that it's not your reply brief says that it wasn't because I think you say um it did not involve an organized attempt to overthrow the government so that's one of many reasons but for an Insurrectio
n there needs to be an organized concerted effort to overthrow the government of the United States through violence and this the point is that a chaotic effort to overthrow the government is not an Insurrection we didn't concede that it's an effort to overthrow the government either Justice Jackson right 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 us
ed in section three Kate how final line is Trump's attorney walking here and does it matter that even his ad Mission there that this was shameful and violent clashes with some of what his own client has said on social media and at speaking events I thought it was a striking moment and it certainly may matter politically as a legal matter you know I'm not sure there's that much interest in really probing this question I was you know glad to see Justice Jackson brought it up because it is one of t
he key questions in the case was this an Insurrection under the Constitution did Trump engage in it um and and yet I think it was that was one of about two exchanges that really went to this question both was this an Insurrection and was the process by which the Colorado trial court made its findings a sufficient process to satisfy the demands of the Constitution um so I don't think that I I imagine if Trump was watching the full two and a half hours I doubt he was happy with that response but i
t seemed from the perspective of winning the case before the justices like a wise concession for Jonathan Mitchell Trump's lawyer to have made and there were a couple of places where interestingly the justices who seem symp a athetic to Trump's arguments were trying to essentially guide Mitchell to making certain kinds of arguments that the presidency isn't an office that this early case Griffin's case kind of resolves this question of whether Congress needs to pass a statute before a state can
disqualify someone and he was a little resistant to taking some of those routes um I think he thought some of his arguments were stronger than others but it did make me wonder whether even if the justices mostly or all maybe you know seven or eight or even nine side with uh president Trump in this case it may not be a case in which there's a single opinion they all agree on because there are so many different arguments that were in play and different justices seem drawn to different arguments al
ong the way with the same ruling but for different reasons uh Rick I want to go to you on the on the Politics as Kate mentioned because that's the legal part of this contrast but of course all of this is also political as you just mentioned we just heard former president Trump addressing this hearing and then immed mediately going into Political arguments as well the fact that he is calling you know people convicted in the January 6 case j6 hostages and trying to say that it was no big deal that
it wasn't violent to have his attorney now saying before The Supreme Court that it was shameful that it was violent and so on does that matter for him politically I think only in as much as now Republican primary voters and ultimately voters in the fall uh tend to care about it I mean what he is saying about January 6 is an utter rewriting of history and this cont icted by the public record and in many cases his own attorneys I think much more consequential even than this ruling which I think i
s as Terry and Kate have been covering it it seems like it's fat complete that he'll remain on the ballot in Colorado will be how the Supreme Court and how quickly the Supreme Court acts on the immunity claim uh and some of the other cases that are working their way through if Donald Trump is still on track to be convicted potentially of a crime before November I think that's going to be more consequential than this would be keep in mind I mean even if the justices were to side with Colorado the
Colorado Republican party is said they'd find a different process they may they may revert to a caucus instead of a primary and this only applies to the primary so this is not even if uh even if it's a very sweeping ruling that affirms Colorado this would not deny him the presidency and I'll tell you the Biden campaign never assumed that it was this is not something that folks in and around the Democratic party have wanted they haven't particularly welcomed this I think they'd rather be talking
about the other criminal cases if any cases at all and make the case against Donald Trump they recognize that they're going to beat Donald Trump at The Ballot Box that's going to happen in November and yes some of the messaging around democracy in January 6th whether or not he is found to have engaged an Insurrection by the Supreme Court in this case involving the Colorado Supreme Court's opinion uh that is not going to be as material as the the political case and the public case that's brought
against them this fall Kate the plaintiff's attorney made the case that by Trump's team's logic Trump would not be allowed to serve as a state judge under the 14th Amendment but somehow would be allowed to be president how effective did you find that argument it's never been weaponized before it's totally illegal but they do it anyway K and it has to stop in watching we may we may have lost um Kate Shaw Rick Rick I want to go back to you though on on this because we not only are hearing obvious
ly a contrast between what um Trump's attorney said on the floor and what we've heard him say but some of his tweets and comments are actually coming into play in this case they were mentioned in these arguments how careful does he have to be right now yeah look I think anything he says can and will be used against him and uh his public comments have not been things that his lawyers would want and I think the the rewriting of History around January 6th and even in this news conference right now
he talked about the very beautiful things that he put on Twitter on January 6th of course we remember what he actually put out there and that is come into play in the impeachment trial in the January 6 hearings and it will almost certainly come into play in the in the criminal Pro proceedings that are being brought against him by the special counsel as well uh including the way that he seemed to egg on the crowd at that speech and then on Twitter his long failure to to condemn them and and ultim
ately talking about uh the the the beauty with which the support was being expressed so those things have have be been factors before and I'd imagine that they would be again uh he doesn't have the same access to social media as he once did or the same pipe pipelines in some cases but he still has quite a megaphone he uses his own social media platform truth social to spread lies and misinformation about the last election and again to to continue to to rewrite um and even some cases uh it could
be read as threatening potential Witnesses so all of that information is uh is going to be part of the public record that again will play out politically illegally Terry the justice has also put the question to the plaintiff's attorney why one state why Colorado should decide this question for the rest of the country let's listen to that moment 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 United States in other wor
ds you know this question of whether a former president is disqualified for Insurrection uh to be president again is you know just say it it sounds awfully National to me um so whatever means there are to enforce it would suggest that they have to be Federal National means why does uh 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 c
andidate a is elected or candidate B is elected I mean that seems quite extraordinary doesn't it 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 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 rea
lly 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 Terry what do you make of that exchange particularly given the way our election system is set up it is a federal election but it is also set up at the state level right and on this issue I I think that the c
ourt was reflecting what the concern of many people in the country is which is you know that that we'd have chaos about who gets on the ballot and that we'll have different uh different candidates on different ballots in different states based on the partisan uh leaning of that state just as Alo later raised the question well let's say there's a state that wants to disqualify Biden as an insurrectionist you might not like their definition of it but we got no standards here there's no process her
e there's no law that governs how you prove that or it just it's a word in the Constitution and maybe somebody's going to say you know the problem at the border amounts to a betrayal of the country and he did raise that as well and I think that what the court was doing here was essentially saying you know the Colorado is taking upon itself through its election qualification law its state election qualification law the the power to determine for the rest of the country how this election will go a
nd the Court seemed definitely troubled by that and the answer of the Colorado lawyer well you guys you're the Supreme Court you'll decide the election they did that in they booked that act as they say on Broadway in the year 2000 and it laid an egg for the Supreme Court they tried that with bush versus Gore their popularity their favorability the trust in the in the Supreme Court collapsed in many sectors of the country they do not want to go down that road again and I want to bring in our seni
or reporter Katherine falers as well because Katherine another argument that came up was that there already is sort of a safeguard in our law to protect from an insurrectionist going to office which is conviction in the courts charge them in court convict them in court and then they won't be able to run for office uh former president Trump of course has not been charged with Insurrection he's not facing that but he is facing a number of other legal cases so what are you watching for on that fron
t and could any of those cases come an impact this one right I think it's 91 criminal counts total Diane and what we learned earlier this week from at least the DC Circuit Court was that they ruled that former president Trump is not immune he doesn't have immunity for acts that he committed while President this is something that the Circuit Court gave Trump's lawyers a deadline of this coming Monday to ask the Supreme Court to intervene in some way so it remains to be seen what the Supreme Court
will ultimately do with that if they will issue a state if they won't issue a stay that case the federal election subversion case seems to be moving forward in Washington DC but I think it's worth pointing out and we saw Trump there and we listened to his statement after again we talk a lot about the legal world and the political world of Donald Trump colliding but he has been using these cases whether he appears in person at them or not you saw him he was down there in Mar Lago reacting to it
he has been using his legal wos to capitalize on his political campaign that was a statement reacted to the Supreme Court he then started to talk about the border for example this is something that Trump while some say that it could potentially hurt his approval rating uh these these legal issues that he has essentially used to capitalize on and and give essentially a political campaign speech this is something that we probably will see next week too Diane you talk about all of these legal chall
enges uh he is likely to appear at a hearing next week on Monday in Fort Pierce Florida in the classified documents matter that hearing is not open those are under seal uh but again we could see another similar thing from Trump next week as well and I want to bring in 538 politics podcast host gayen Dro for what the poll show gayen what do Americans think about this effort to disqualify Trump from Office well stop me if you've heard this before Diane but Americans are pretty closely divided on t
he issue so ABC News has done polling on this question of whether you support uh Maine and Colorado's DEC ision to Bar Trump from the primary ballot and 49% of Americans said that they support the decision 46% said they opposed the decision when it comes to the actual question of what the Supreme Court should do now about 40% say that the Supreme Court should keep him on the ballot everywhere 30% say the Supreme Court should take him off the ballot everywhere and a quarter say leave it up to the
states to decide so if you do that math a majority of Americans say that the Supreme Court should either take him off The Ballot or leave it up to states to decide but I think we have to sort of dig a Little Deeper on this question because I've looked at polling I've also been out in the field talking to voters about their understanding of section three of the 14th Amendment now I think it would be unrealistic to expect most Americans to know the specifics of this part of the Constitution I mea
n not only is it asking Americans to be legal scholars in some sense it's also a part of the Constitution that has never been reviewed by the Supreme Court it's not like roie Wade that everyone is familiar with so I think opinions are somewhat malleable on this question I was out for example talking to folks in New Hampshire leading up to the primary about what they thought of Maine taking Trump off the ballot and as you talked with them it felt like their opinions were evolving based on what in
formation you were giving them it's a complicated issue uh and one that our stepen porno actually did a deep dive into stepen looked at the origins of this section of the Amendment so Stephen I want to bring you in here to dissect some of the legal ease that we heard there was a lot of talk of Officer of the United States officer under the United States whether Section 3 applies to Trump or not what did you find about how the framers intended this to be interpreted well you know it's it's intere
sting because you can read the transcripts of the Congressional debate on the 14th amendment in the Congressional Globe a forerunner of the Congressional Record and you know Congress really was intent after the Civil War on making it impossible for former Confederates to serve in federal or state offices and that was a clear intent it was mentioned in the oral argument today that there was actually a statute that was on the books that was meant to prevent former Confederates from serving in gove
rnment but they went to they wanted to take a step further and put it in the Constitution so in 1868 the 14th Amendment is ratified with this language that was meant to last for all time and what was so interesting is to hear the justices grapple with the contemporary modern problems of enforcing the 14th Amendment Section 3 and was interesting to me also St I'm sorry I'm going to interrupt you for a second because Jason Murray the plaintiff is now speaking outside the Supreme Court let's listen
right and apply the law as it's written what makes you feel so hold on hold on guys one at a time what Outlet are you with proud of you what if they don't well if they don't then we as the rest of the country should do will abide by the result but we're confident that they will recognize that we're right on the law let's go right here CS news I'm the makeup of theado behind youing how you game that out what your expectations are and them making a decision the time on that well our our expectati
on is that any judge regardless of who appointed them will do their best to apply the law as it's written uh and not try to achieve any political outcome and here the law is clear in our favor can I ask nor Anderson it's Mark Stone from from Sky News I wonder if I could ask you uh what your message is to the millions of trump supporters around the country all right so we're just hearing there from Jason Murray one of the attorneys arguing for the plaintiffs in this case trying to have Donald Tru
mp removed or remain removed from the ballot in Colorado I want Terry Moran I want I want to go back to you for sort of final thoughts here where does this go from here and what are the potential ramifications well the justices will now have to decide and as Kate Shaw and and others have noted it looks like there's a strong majority perhaps even a unanimous court that will keep Donald Trump on the ballot in Colorado and write it in such a way uh that this 14th Amendment issue will be laid to res
t in this way that said you know the ramifications of it are are what they have been for many years now since he came down the escalator Donald Trump transformed American politics he tests the boundaries of and Norms of our political system at every kind at every moment and that's tough and it's tough for every institution that's had to deal with them that and his populist movement he's got a lot of support it's tough for the Supreme Court that's what we heard today sure sounds that way all righ
t K Shaw Terry Moran Steve poror gayen Dro Rick kleene and kathern falers thank you all we'll be right back whenever news breaks we are here in Israel a nation at war after that brutal surprise attack by Hamas on the ground in Ukraine reporting from Leon main the scene of a horrific mass shooting ABC News live is right there everywhere from the scene of that deadly missile strike in Dena Ukraine reporting from the earthquake in Turkey en rolling Fort This Tornado tore through this little town fr
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