The US Supreme Court could determine whether Donald Trump is immune from criminal prosecution for crimes connected to the January 6 attack on the US Capitol, and whether his name can be removed from ballots because of them.
Those two major constitutional questions before the nation’s highest court – where three of the nine justices were appointed by the former president – arrive in the middle of the 2024 race for the presidency, and could have resounding impacts beyond Mr Trump’s campaign.
The Supreme Court is considering whether Mr Trump has “presidential immunity” from charges connected to his attempts to subvert the outcome of the 2020 presidential election, including his failure to stop a mob of his supporters from breaking into the halls of Congress to stop the certification of the results.
His campaign also pledged to go to the Supreme Court following a Colorado ruling that bars him from appearing on 2024 ballots under the 14th Amendment of the US Constitution, which prohibits candidates who “engaged in insurrection or rebellion” from holding public office.
Those questions underscore the massive role that courtrooms have played in Mr Trump’s brutal campaign for the White House in 2024, a campaign that frames the 91 criminal charges, fraud lawsuits and sexual abuse and defamation claims against him as evidence of a conspiracy to keep him away from the presidency. Mr Trump has promised vengeance against his political enemies if he wins another White House term.
On Tuesday night, the former president didn’t issue a statement or even address the Colorado ruling from the stage of a campaign rally in Iowa, where he spoke roughly one hour later. Instead, while he was speaking, a fundraising email with the title “REMOVED FROM THE BALLOT” asked supporters for donations to “join the fight to keep my name on the 2024 ballot and peacefully defend YOUR right to vote.”
Mr Trump, who has spent years in court litigating against threats to his business and his political career, has relied on his multiple courtroom battles in several jurisdictions to raise millions of dollars for his campaign, telling his supporters that the threats he faces are also coming for them.
What he doesn’t tell them is why, or even what he’s been charged with, but it’s a narrative that is driving his campaign, and every subsequent courtroom decision against him becomes more fuel to cast himself as the victim.
Meanwhile, his attorneys have echoed his claims of “election interference” in court filings and courtrooms across the country.
The Supreme Court is also considering the scope of a federal statute that makes it a crime for anyone who “corruptly” obstructs an official proceeding – in this case, the certification of the 2020 presidential election. That charge has hit more than 300 defendants, including the former president.
Those questions before the high court’s conservative supermajority also come under heightened scrutiny of the court itself. The court is facing questions about its legitimacy and ethics obligations after a wave of reporting revealed justices’ ties to powerful donors and special interests, including potential interference in the 2020 election.
That confluence of events – and potential answers to what are ostensibly simple questions about the role of government – close out 2023 at a critical turning point.
The ‘presidential immunity’ question
A federal grand jury indictment charges the former president with four crimes, including conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct an official proceeding and conspiracy against rights.
He is accused of using lies about the election’s outcome to wage a pressure campaign against state officials to push fraudulent slates of electors to obstruct the certification of the results, followed by a failed effort to persuade then-Vice President Mike Pence to refuse the outcome, and, ultimately, failing to stop a mob of his supporters from breaking into the Capitol.
His attorneys have argued that not only were his actions protected as “core political speech,” they also have stated that he is protected from prosecution for actions they consider part of his presidential duties.
No former president has ever been criminally prosecuted, let alone for actions committed while in the White House. Mr Trump’s attorneys have seized on that lack of precedent to get the indictments against him thrown out.
US Supreme Court Justice Clarence Thomas, centre, speaks with his wife Ginni Thomas, seated next to Justice Samuel Alito, at Sandra Day O’Connor’s funeral on 19 December.— (Getty)
On 1 December, the federal judge overseeing his election conspiracy case wrote that Mr Trump’s one term in office did not bestow on him “the divine right of kings” to evade criminal accountability.
“The United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass’,” wrote US District Judge Tanya Chutkan. “A former president’s exposure to federal criminal liability is essential to fulfilling our constitutional promise of equal justice under the law.”
In their request for the Supreme Court to quickly settle the question ahead of a March 2024 trial date, federal prosecutors said that such liability is a “cornerstone” of constitutional law.
“The force of that principle is at its zenith where, as here, a grand jury has accused a former president of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor,” they wrote.
“Nothing could be more vital to our democracy than that a president who abuses the electoral system to remain in office is held accountable for criminal conduct,” the filing added. “Yet [Mr Trump] has asserted that the Constitution accords him absolute immunity from prosecution. The Constitution’s text, structure, and history lend no support to that novel claim.”
The 14th Amendment question
Section 3 of the 14th Amendment plainly outlines what makes a candidate ineligible for public office:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
A final clause, however, adds that Congress may, “by a vote of two-thirds of each House, remove such disability.”
The 14th Amendment was among a suite of civil rights amendments enacted in the volatile aftermath of the US Civil War to grant equal protection under the law to all citizens, including formerly enslaved people.
Section 3 of that amendment effectively enshrined what President Abraham Lincoln had declared before Congress after the first shots of the war were fired in 1861.
A question of whether the American experiment can survive against “an internal attempt to overthrow it” remained in dispute, according to Lincoln, and “it is now for them to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion; that ballots are the rightful and peaceful successors of bullets, and that when ballots have fairly and constitutionally decided there can be no successful appeal back to bullets; that there can be no successful appeal except to ballots themselves at succeeding elections.”
“Such will be a great lesson of peace, teaching men that what they can not take by an election neither can they take it by a war; teaching all the folly of being the beginners of a war,” he said in his address.
Section 3’s authors argued during congressional debate that the rules apply to anyone who took an oath of office, including the president, which attorneys for Mr Trump and right-wing legal analysts have disputed, by pointing to language that he is neither “an “officer under the United States” nor an “officer of the United States”.
A mob fuelled by Donald Trump’s false claims that the 2020 election was stolen from him stormed the US Capitol on 6 January, 2021, to stop the certification of Joe Biden’s victory.— (AP)
Republican US Rep Marjorie Taylor Greene faced a legal challenge over her eligibility for office under Section 3. So did former Republican US Rep Madison Cawthorn, whose case was declared moot after he lost a primary election.
Last year, Couy Griffin, a county commissioner in New Mexico who was convicted for his role in the 6 January attack, was permanently removed from office under a Section 3 “insurrection” challenge, marking the first successful attempt to disqualify a public official from holding office in more than 100 years.
A lawsuit filed by a government watchdog group on behalf of a group of Colorado voters argued that Mr Trump had also “failed” Section 3’s test, rendering him “constitutionally ineligible to appear on any Colorado ballot as a candidate for federal or state office”.
Last month, Colorado District Judge Sarah Wallace found that not only did Mr Trump incite the attack on the Capitol in an effort to block the peaceful transfer of power after the 2020 election, he also “engaged” with it.
Mr Trump “acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification,” she wrote.
After an appeal to the state’s highest court, the justices wrote in a 4-3 majority opinion that “President Trump did not merely incite the insurrection.”
“Even when the siege on the Capitol was fully underway, he continued to support it,” they continued. “These actions constituted overt, voluntary, and direct participation in the insurrection.”
The ruling determined that his “direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary.”
Mr Trump and his campaign intend to appeal the Colorado Supreme Court decision to the US Supreme Court.
The Colorado case is among several stemming from similar lawsuits challenging his eligibility to appear on 2024 ballots under the provisions of the 14th Amendment.
Colorado law requires the secretary of state to certify the names that will appear on the ballot by 5 January. The state Supreme Court ruling is delayed until 4 January to allow the nation’s highest court to review it, if it chooses to.
Supreme Court justices could ultimately leave the 14th Amendment question up to individual states to decide. In that case, the Colorado Supreme Court ruling would not impact challenges in other states. But state courts could point to the ruling in Colorado when making their decision.
“Even inaction would functionally exclude him from not just Colorado but perhaps other states,” Notre Dame Law School professor Derek Muller said in a statement shared with The Independent.
“There are a dozen ways the Court could go. And there is no question this is a big, big deal,” he said.
