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this post was submitted on 08 Feb 2024
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Jonathan Mitchell, one of Trump's attorneys, is currently trying to argue the whole "president isn't an officer" garbage.
Edit: Mitchell is giving a master class on how to split inconsequential hairs.
Edit 2: Kavanaugh and Gorsuch have been asking some surprisingly good (and pointed) questions of Mitchell that make me wonder what their actual positions will ultimately be.
Edit 3: KJB picking at Trump's legal team's arguments pretty effectively.
Edit 4: Trump's team is done for now. Now the real lawyers are up.
Edit 5: Thomas asking for examples of national candidates being disqualified at the state level.
Edit 6: Thomas is such a gas bag when he deigns to speak.
Edit 7: Roberts clearly signals that he wants to punt this to Congress.
Edit 8: Multiple justices questioning whether this is a state-level decision.
Edit 9: Roberts bringing up the possibility of retaliatory attempts to remove candidates if Trump is removed. Seems awfully specious, but it's more signaling that he really doesn't want to make a decision on this.
Edit 10: Conservatives on the court spent the last five minutes or so arguing from a position that if Trump is held to be an insurrectionist, anyone can be held to be an insurrectionist.
Edit 11: Honestly, I think Jason Murray (lawyer for Colorado) is doing an absolutely phenomenal job with some extremely hostile - and ridiculous - questioning.
Final edit: That's it for live-blogging this, I have shit to do. But applause for Murray, he's rocked it.
The Congressional angle I don't understand.
The 14th states that Congress can CLEAR a candidate who would otherwise be barred, but that still means he would be barred otherwise.
It's patently nonsensical. Not even Trump's own appointees seem to take that one seriously.
That's what he's telling Gorsuch right now, the disqualification exists now and can only be removed by Congress.
A Supreme Court justice making a slippery slope argument is wild to me.
The most surprising thing to me, a non-lawyer, listening to this was that Mitchell (Trump's lawyer) was arguing Trump is ineligible to be president right now. But Congress could potentially vote to make Trump eligible to be president by voting to override the insurrectionist clause. So therefore Trump shouldn't be kept off the ballot now, because he could be made eligible later.
Murray (lawyer for Colorado) had a pretty good point on that later basically saying that any criminal conviction has the potential to be pardoned. That doesn't mean that we should act as if the conviction has no merit.
Mitchell's "officer" hair splitting is ridiculous.
Roberts'(?) Questions about military officers defying the order of a president after he committed insurrection has nothing to do with this case, does it?
Edit: I'm coming around a bit on the Officer /officer of question. A lot of constitutional law is about stupidly precise questions about the language, and as we saw under Trump's presidency, the laws really aren't written robustly and there are tons of things that have been assumed to be obvious but don't hold up.
I don't think it does. Soldiers are already required to disobey illegal orders anyway.
That's a good point. Does that extend explicitly to orders from people not in their chain of command? There MUST be something in the UCMJ about it.
Under Murray's (Colorado's) argument that the insurrection disqualification is self enforcing and necessarily instant, that would mean Pence was the president until the Biden transition, wouldn't it?
No, Murray's argument wouldn't apply to someone already occupying the office. Unfortunately, once someone is actually holding the office, they can only be removed by impeachment.
I don't think I agree with that, and I did hear one of the male justices (I can't match names to voices) ask about it. Impeachment is provided as a means to remove someone from office, but nowhere does it say that it's the ONLY way to remove someone.