>> walk this way! >> walk this way. >> everybody in line, please. >> i am at the three. yeah. >> anyone in the office? >> you can give me your keys. seriously.

>> mr. chief justice then y it please the court. thcorado supreme court held that prede donald j.ru's constitutionally disqualified from serving as president uer section three of the 14th amendment. the colorado supreme cou's decision is wrong and should be reversed for numers independent reasons. first reason is that presen trump is not covered by section threbeuse the president is not an officer of the united states as that term is used throughout the constitution. officer of the unid ates refers only to appointed officials and it does t encompass elected individual such as the president or membs of congress. this is clear from the commissions clause, the

impeachment clause and the appointments cus each of which uses officers of the united states to refer only appointed and unelected officials. the second reason is that section three cannot be used to exclude a presidential candidate from the ballot even if that candidate idiualified from serving as president under section three because congress can lift thatisability after the candidate is elected but before he takes office. a state cannot exclude any candidate from federal ofce from the ballot on account of section three and any state that does so is violatinthholding of term limits by alterg the constitution's qualifications from federal office. th colorado supreme court's decision is no difre from a state residency law that requires members of congress to inhabit this day prior to election day when the constitution requires only that members of congress inhabit the

state they represent when elected. in both situations, a state is cerating the deadline to meet a constitutionally imposed quification and is thereby violating the holding of term limi. and in this situation, reeling from this court th airms the decision below would not only violate term limits but take away the votes of potentially tens of millions of americans. i welcome the courts questions. jutice thomas: mr. mitchell, you did not spend much time on your argument with respect to whether or not section three i self-executing. would you address that and doing that, you -- yourrgent is that it is not self-executing but inhat case but with the role of the state be or is it tily up to congress to implement the disqualification in section tee

mr. mitchell: it is entirely up to congress justice tmaand their argument goes beyond that section three is self-executing. you need to same more than that because a non-self-ecung constitutional provision normally can still be enforced by a state if it chooses to enact legislation. the holding of griffin's case goes beyond thabyaying a stay is not alloweto ilent force of section threef e 14th amendment unless congress acts implementing legislation allowing them to do so. under ifn's case, which we believe is correctly decided, there would not be any role for the state in enforcing section three unless congress was to enacatut that gave them that authority. >> what if someone came into the secretary of state's office and id, i took the oath specified in section three, i participated

in insurrectio and i want to be on the ballot. does the secretary of state have the authority in that situatio to say no, your dqualified? mr. mitchell: the secretaryf state could not do that consistent with term limits. ev if the candidate is an admitted insurrectioni i allows election officansee whether congress lifts t disability after the election. is happen frequently when confederate insurrectionists re elected to congress and sometimes they had a waiver and sometimes they did not. each house is the sole judge of the qualifications of its members. if the state band en an admitted insurrectionist to the ballot itould be adding to and altering the constitution's qualifications for office because de section three the candidate need only qualif during the time the candidate holds the office to which he has

enlected. the secretary ofta would be demanding a centrally that the congress opined a waiver obtain a waiver from congress. chief justice roberts: even though it is unlikely or would be difficultorn individual that says i am an insurrectionist and i had taken the oath, that would requi t thirds of votes in congress. right? mr. mitchell: correct. chief justice roberts:hat is an unlikely scenario. mr. mitchell: but no secretary of state is allowed to predict a iver because in doing so they are adding a qualification to the ily to run for congress. theroper analogy is the state residency law because the nstitution says a member of congress must inhabit the state he represents when elect. the lower courts have all held a reliance on rmimits that an official cannot move that deadline any earlier by requiring a candidate congsso inhabit the state -- chief justice roberts: even if a

candide says i am a resident of indiana and i have been all my life and i want t run for office in illinois, the secretary of state cannot say you cannot? mr. mitche: the question would be is th person going to inhabit e state when the election is held. ifhe candidate makes clear perhaps through a declaration or through a statement that he has no intention of relocating to that state before election day, then the secretary of state would be enforcing and it stand constitutional qualification rather than foing a new state impos qlification and that is the key under term mi. is this day and anyway altering the criteria for a feral office either for congress or the presidency? in this situation the colorado supreme court is going slightly beyond what section three requires because section three on phase bands and

insurrectionis holding office. >> you admitted that the concept of self-executing does generally permit states to provide a cause of action for breaches of a constitutional provision. in fact, they do it frequeny. he tre is no debate that colorado has placed or provided that cause of action. you want to go a stepurer and say that this, likth treaty clause, requires implementing legislation to permit the state to disqualify and insurrectionist. under section three. mr. mitchell: that is correct. justice sotomayor: history proves a lot to me and my colleagues generally, there are a whole lot of examples of states relying on secti tee to disqualify insurrectionists

first stage offices. d you are basically telling us that you want to go two sts further or maybe three you want us to say that self execution does not mn at it generally means. you want us nowo say it means atongress must permit states or requires states to stop insurrectionists from taking state office and so this is aomete preemption and a way that is very rare. it is rare under the 14th amendment. mr. mitchell: of course, it is rare and this is a one-off situation. justice sotomar: i don't disagree but not with respect with the way we do find self-executing. mr. mitchell: we are not asking the court to redefine the concept of self executio justicsomayor: now the eson is a very different one in my mind.

understand what you are relying , iffin's. let's be clear. it was not a presidential supreme court decision. it was a circuit court decision by a justice who when he becomes a justice writes in the davies case -he assumed that jeffso davies would be elible to hold any office particularly the presidency and treate a this is his own words, second -- section three as executing itself meaning no legislation on the part of congress to give it affect. you are relying on a nonpresidential case by a juste who takes back what he said. mr. mitchell: the key point for griffin's case and why it is an imrtt precedent, it is not a president ofhi court but it provided the backdrop against which congres legislated the enforcement act of 1870.

justice sotomayor: it did away withhalater. has nothing to say with respect for what section three ans. can we get to the issue which is i think one i go back to that i started with and very briefly - what senseoes it say that states cannot enforce section three against their n officials? i thinlocally those are two separate issues iny nd. states and force the insuecon clause against their own officeholders or can they enforce it against federal ofcials? or can they enforce against the president? those are all three different questions in my mind. mr. tcll: and the answer to all three of those questions depends owhether this court agrees with griffin's se

griffin's case is the proper nunciation of the law than the state cannot do any of the things your honor suggests unless congress gives ithe authority to do so. justice sotomayor: a presidential decision that relies on policy does not look at the language, does not look at theisry, does not analyze anything other than the disruption that such a suit wouldri you want to credit asresidential. mr. mitchell: because congress relied on griffin's case when it enacted the enforcement act of 1870 and established -- justice sotomayor: if i may interrupt, it -- this sounds like your replyri where you are not making a cstutional commit but a statutory --argument. is that what you are doing here? u are not saying the constitution gives you this rule. it is a combination of griffin's case plus the way congress acted after griffin's casehagives you the role? mr. mitchell: thats actly

right, justice kagan. congress took uphenvitation provided by griffin's case. the only enforcement legislation that is currently on the book is the insurrection criminal case and congress made all of these decisions, the itl enactment of the enforcement act, the repeal of the provision of 1948, they rell made with griffin's ca athe backdrop. the understanding was that these remedies would be exclusive of state cot remedies so there is not an express -- there did not need to be because griffin's case provided the backdrop. ste kagan: suppose we told all of that away, suppose there were no griffin's case and there were no subsequent congressional enactment, but do you then tnk the rule would be? mrmitchell: it is a much harder argument for us to make because normally -- i mean every other provision of the 14th

amendment has been treated as self-ecung. the e practical considerations unique to section three that counsels in favor of a rowimilar to what chief justice chase spelled out and griffin's case and it goes to the policy concerns htaed about. griffin's case involved a convicted criminal who was -- habeas corpus on the grounds that the judge tt tried his case was and insurrectionist is qualified unde section three. the chief justice realized that if he enforced section three i would nullify every official act taken by thi particular judge by anyone who wasn't insurrectionist or arguably and insurrectionist under s three. >> why do you need these in -- inconsequential. why don't you have an argument of the constitution of its own fours? -- of its own force? mr. mitchell: there could be an

argument that is more limited. you are suggesting a barrier under the constitution to -- legislation for section three specific the federal officers and cld rely on presidents such as mcconkie. justice barrett: why aren't u making that argument? mr. mitchell: the holding of griffin's case went well beyond that. e ief justice chaseroded the backdrop for the enforcement legislation that states had no role in enforcing section three unless congress was to give them thatutrity through a statue they fast. justice barrett: your argument is a little broader than that because i think if we accept your position that disqualiin someone from the ballot is adding a qualifiti, really your position is that congress cannot enact a statute --

because congress would be adding a qualifatn which it cannot do either. mr. mitchell: i do not agree thhat. coress is not bound by the holding of term limits. they only prohibit the ste from adding additional publicio or altering the constitution's requiremen f federal --. if congress were to ent implementing legislation that authorized the stas exclude insurrectionist from the ballot, we believeha would be valid enrcement legislation of section three with the important caveat that there has be proportionality. >> but why would that be permissible because section three refers to the holding of office and not running for office. and so, if a state or congress were to go further a say that you cannot run for the office, you cannot compete in a primary wind that be addg additional qualification for serving as president? you must have been fe from this disqualification at an

earlier point in time as section three specifies. mr. mitchell: the answer to your eson depends on how you interpret enforce in section five. some members of this court believed that enforce means you can dnoing more than enact legiatn that mirrors the --. that is not the current jurisprudence of this court. justice alito: we would get into the question of whether th would be congruenan proportional. let me shift gear, i take you to argue and i thinkoure right. the term self-executing ia misnomer as applied here. very often when we use the term what we are referring to is the proposition that a particular provision of a constitution or a statute creates a private right of action. that is nothissue here. mr. mitchell: a setimes the phrase self-exutg is used that way but i would add that sometimes self-executing

treaties -- the issue is whether it has any force and domestic law. justice alito: i don't see what is gained ung this term. what is involved here is the question of whether -- of whom caenrce section three with respect to a presidential candidate. the consequences of what the colorado supreme court did, some pele claim, would be quite severe. would it not permit -wod it not lead t the possibility that other statesou say, using their choice of law rules and their rules on collateral estoppel, that there is n-tual collateral estoppel against former president donald trump. so the decioof the colorado supreme court could affectily decide this question for many other states, perhaps all other

states. could it not lead to that consequence? mrmihell: i don't tnk so because colorado law does not recognize --. and i believe the preclusive effect of that decision --. i think your question, justice alito, gives rise to a greater concern. if the decision does noha effect on other lawsuits it would have another possibility. different factual findings would be entered by state trial court judges and they might conclude as a matter of fact tt president trump not have any intent to engage in incitement or make some other finding different. justice alito: exactly. this decision, the trial court in colorado thought it was proper to admit the january report and it also admitted the testimy of an expert who testified aut the meaning of

certain words and phrases to people who communicate with and among extremists another state court could reach an opposite conclusion. other states ulconclude that the january 6 rept s admissible hearsay and they might conclude that the atements within the january 6 report are hearsay. and they could certainly have a different conclusion tha the expe ttimony of the professor. perhaps they could produce their own witness. justice alito: should these considerations be dismissed as inconsequential or do they support a structural argument that supports the decision you are taking? mr. mitchell: i think they mutually enforce each otr. we have an argument we believe it is sufficient to dispose this case jusbad on meaning of ofceof the stage. all of the considerations are additional reasons to reverse

the colorado supreme court although we don't think it is necessary to get into consequences because the law is on our side. >> you kp saying term limits buthe are other presidential alifications in the nstitution, age, citizenship and the 22nd amendment that does not permit anyone run for a second term. we have a history of states disqualifying -- not all but some odisqualifying candidates who would not be of age if elected. we have a history of at least e ate disqualifying someone who was not a u.s. citizen. are your arguments limited to seion three? mr. mitchell: not quite. e estion is whether the state is violating term limits by adding two or altering the extent qualifications for the president and thcotitution. justice sotomayor: so you want us to say -- i'm wondering why the term limit qualification is important to you.

are you setting up so if some president runs for a third term. a state cannot disqualify him from aalt? mr. mitchell: of course is taken disqualify him from the ballot because that is a cash that is categoril. a stay is enforcing the constitution when it says you cannot appear on our bell if you have already served through -- two terms. justice sotomayor: same if they are not a u.s. citizen. mr. mitchell age is more nuanced because you could imagine snario where the person is 34 euros old at the time of the election what he terms -- turns 35 before d inauguration. justice sotomayo tt would come beforus at some point. we would have to decide that eson then. my point i -- so adding qualifications to what term

limit is your argument based on? mr. mitchell: i will start with the age example. if a state like colorado says you cannot appear on our pridtial ballot unless you are 35 on the day of the election that would be a violioof term limits because there could be a 34-year-old on the day of the election who turns 35 before inauguration day. what colorado where there supreme court has done here is similar. unde section threeredent trump needs to qualify during the time he wldold office and the colorado supreme court is send a presidentrump, you have to show that you would qualify under section three now at the time of the election or at the time that we the supreme court -- >> a point of clarification. when you say term limits you mean our decision and the term lits case. mr. mitchell:he.s. term limits versus thorton. does it have something to do with the fact that the

particular circumstance you are talking about can chge i'm trying to understand the distinctioneten the provision in the constitution that relates to the qualification on the basis of insurrection behavior and these other provisions that justice sotomayor points out. they all seem to me be x stand constitutional requirements. but you are drawina distinction. mr. mitchell: because some are categorical. >> what do you mean by categorical? whether or n you are an insurrectionist -- mr. mitchell: because congress can lift the disability by a two thirds vot >> why does that change the initial determinioof whether or not you fall into the category? i don't understand the fact that you can be excused from having been in the category -- why does that not make it a categorical termination? mr. mitchell: because we don't

know if president trump would be sworn -- would be excused for being sworn in. and a court saying that president trump s show now today that heou qualify under section three is accelerating the deadline the constitution provides for him to obtain a waiver from congress. >> that is by virtue of the hold. mr. mitchell: correct. >> now that i have t floor, can i ask you to address your first argument wch is the officer point? >> is that ok if we do this? will there be an opportunity to do officer stuff? >> absolutely. [laughter] >> i just want t understand, on this theory, why does the sum total of ways tha section three can be enforced?

th somebody out there can say, yes, there has been a former president who engaged or led or dissipated in an insurrection and so should dqualified from office putting aside the officer argument, what is the sum total of ways that enforcement can happen? mr. mitchell: the answer to tt question will depend on what your honor thinks about griffin's case. if this court were to affirm the rationale of griffin's case then the only way section three could be enforced is through congressionaleslation. congress could reinsta the -- provision -- d w does that fit wh a lot of the answers to the questions that we have been given. you said congress has the ability by a two thirds vote to lift the disqualicion. but so too, i would think that provision wod be in some

tension with atou just said. if congress has t ality to lift the vote a two thirds majority then surely it cannot be right that one house of congress can do the exact same thing by a simple majority. mr. mitchell: there certainly is some tension. and some commentators have pointed that out. justickan: then i must be right. [laughter] . tchell: we do't think the problem is fatal. though two thirdsrosion that allows congress to lift a disabili isomething they can a part in power. congress can create a mechanism byhich the insurrection issue cod be determined by some entity, each house that has the ability to judge the qualifications of e members or in a disn from congress it would be whater ngress enacts. each federal prosecutor had the authority bring the writ against an incumbent official and seek his ouster from office

under section three but it was still subject to the amnesty provision in section three of the 14th amendment. we acknowledge thesion but do not think it is an insurmountable obstacle. if you would analogize the lifting by congress of the disqualification by a two thirds vote to a pardon, then surely we would not arguehathe fact that the presidentr vernor can pardon somnerom a criminal conviction or a criminal offense meaning the person could not be prosecuted in the first place forhe criminal offense. mr. mitchell: that is right. >> i don't see the tenon there are two separate things. did the person engage in the act? and even if theern did, are there reasons the disqualification should be lifted or e rdon should be granted? mr. mitchell: if the court accepts the griffin's case that would be the ridging that we have. ief justice roberts: i don't know if the a limit that

one -- on something that someone can infer -- >> isn't that what you are doing? >> the intention would be that you would have the exact same actor and say the aor can lift the disqualificationy two thirds vote. and you are saying only that tocan p the disqualificati into effect in the first place and it can do that by far less than two thirds. it can do that by a simple majority of one house. or by doing nothing at all if the holding of griffin's case is correct. >> exactly. justice kagan: the only thing it takes to havnoction is half plus one sayinweon't fe -- feel like it. mr. mitchell: we were relying on preemption documents as well >> the griffin's case is also

important to figure out the original public meaning of section three ofhe4th amendment. that seems to me highly probative are -- of what the meaning or understanding of what that otherwise elusive language mr. mitchell: we did not rely too heavily on the point you are making ptlbecause we have this other opinion from justice chase in the jefferson davis case that argument could potentially omang on us which is why we dinot push it hard on our briefing. justice kanah: i want to let you finish that since== -- th sentence. mr. mitchell: it might b relevant and it might undercut why grip -- why the griffin's case is completely emblematic of e are trying to point out. justice jackson: i had a question because you are making a contextual list argument.

i look at section three i see two pas of the first sentence of section three. the first is a list of offices that a disqualified person is rred from holding and second are specific cirmsnces that give rise to disqualification. first, am i right about seeing that there are two different things happening in seen one? are you arguing bo ojust one? are you arguing tht the office of the presidency should not be consided e of the barred offices and that the -- a person that previously took a presidential oath is not subject to disqualification? mr. mitchell: we are arguing both. stice jackson: i don't see that in your brief. mr. mitchell: there is a focus on the second anad knowledge that we have a heavier lift on the first. justice jackson: why? it seems youava list on the

presidenisot on it. mr. mitchell: it -- every time it appears it is used in a way that excludes -- justice jackson: the first argument is th we have a list of offices that a person is barred from holding under your theory or under the language and we see it begins with senator, representative, elector of the president and vice president, and all others civil or military offices. offices under the united states. but the words president and vice president do not appear specifically on that list. i'm trying to understand are you giving up that argument and if so w? mr. mitchell:he president and vice prede are not specifically listed but the anderson litigants --

>> and do you agreeha the framers would've p sh a high-end sigfint and important office or smuggled it in through that catchall phrase? mr. mitchell: wdon't agree at all. that is why we are making the argument that the president is excluded -- >> your brief says you did not make a position #a positi o that point. your brief, i d't have the site and i apologize for that, but you do not affirmatively argue that point i think is what yo bef said. mr. mitchell: we certainly argued it in a reply brief. we did point o iour opening brief that there are potential issues at this court wou re under because that phrase pears in other parts of the constitution including the impeachmsquafication clause -- >> i thought the point was that

section three was unique. that there was something happening with section three that could explain why certain offices reeft off or whatnot. mr. mitchell: perhaps but there e so implications in other parts of the constitution which really helpss th the "of the officer" of the united states. if this court reo say that the presidency is an excluded office under the united states that could apply at president is not covered by the -- >> a lot hinges on the difference between come in your argument, between the words office and officer. and i guess i'm woerg what theory do you have from the original understanding or from a textl lis perspective why those two terms so closely related would carry such different weight? mr. mitchell: because it is

clear from the text that there are officers tha do not hold offices under the united states for example the speaker of the house and the presidenpr tempore who are described as officers in article 1 -- chosen by the legislature. they also have to be offics they are able to be covered by the presenal succession act. the officers conserve when there is a vacancy in the presidency and vice presidency. they are not oics under the united states. if you are a member of congress you cannot simultaneously hold an office under the united states. that provisionemstrates that a member of congress cannot ld office -- stice gorsuch: i appreciate that response. is there anythininhe original drafting history discussion that illuminates why that distinction would carry such wgh mr. mitchell: not thate are aware so these are textual inferences that we are drawing but we are not relying necessarily on the thought

processes of these people that draft does because they are unknowable. this language, especially section three, was enacteds compromise. there were radical republicans at wanted to go much further if you look at some of the earlier drafts proposed. some people wanted toanll insurrectionists from holding office and some wanted to go further and banned tm even from voting. >> thank you, counsel. i have one technical question. the statute of 1870, if it were still in effect, would rui you to modify your arguments slightly. it was repealed as you said in 1948. i tried to find it. do you know why it was repealed? mrmitchell: it looks like it was done as part of a reornition of the united states code. i think a lot of things got repealed in that. justice

chief justice roberts: justice thomas, any further? >> is there any evidence of other stat ung section three wbar -- to bar -- mr. mitchell: not that i am aware. >> thank you. justice sotomayor: i would like to condone your principal argument on seconhree. en though the president may may not qualify for the esency may or may not qualify as an office of the uned states, your principal argument is that the president is not an officer of the united states correct? mr. mitchell: i would say it more forfuy than what you described. we belie t presidency is excluded from office under the united states but the argument that he is excluded is the stronger of the two textually. justice sotomayor: a bit of a

gerrymandered rule designing it to benefit your client. mr. mitchell: i would not use the term gerrymandeds that would suggest nefarious -- justice sotomayor: only the petier is disqualified because virtually every other presidentxcept washington has taken an oath to support the constituon correct? mr. mitchell and john am might also be excluded. presidt biden -- he took an oath as member of congress and it is true of every previous president. justice sotomayor: would that be true if we were to hold more narrowly in a reversal that it is not section three that is at issue but as wther section three could be enforced by states against the president? >> that would extend every

presidential candidate. justice sotomayor: exactly. thank you. justice kagan: given you said you don't have a lot of evidence that the founding generation is really thinking about office versus officer of the united states, it would suggest that we should ask if that rule is a sensible one? if they had thought about it, wh rson would they give for that rule? it does seem there is no particular reason d u could think of lots o reasons to the contraryoe say that the only people who havenged in insurrection who are not disqualified from office are presidents who have not held high office before --why would that rule exist? mr. mitchell: i don't in there is a good rational given this is compromisleslation. if there is an agreed-upon set of wordshacan pass both houses of congressut different

legislators may have had holes and they did not get their way -- this was the text settle upon. and it would seem odd that presen trump wou fl through the cracks in a sense. but the no way that he can be covered under sti three. justice kagan: is tre any better reason if he goes to the office argument that jusce jackson was suggesting, is there any beer reason then saying that an insurrectni could not hold the whole panoply of offices in the united states that we are perfectly fine with thatnsrectionist being president. mr. mitchell: ihink that is the tougher argument for us to make from a policy matter. of all offices that would be the one off as you would lik to keep an insurrectionist ouof it is why a leaning -- w are not conceding officer under but we deftly have a stronger textual case.

justice gorsuch: i want respond to some of the specific textual arguments on the officer wh the importance of the clauses. i wanted to see where you lande today. mr. mitchell: there are three textual inferences that n drawn. but it does not say that the president shall commission all the oics of the united states. xiaos ndatory. he cannot commission himself. that is one of the first problems. the anderson litigants, i think what they're trying to say is the president cannot commission himself -- we also have members of congress who are not commissioned by the president d that is because they are not officers of the united states. the only sensible distinction we

can see given the language is that offices of the united states -- officers of e ited states are appointed officials in the impeachment clause enforces that. e esident and the vice president are listed separately from officers of the unite states and the appointments clause, wenow the president is not appointed nor is a vice president nor are members of congress. they cannot be officers either. justice gorsuch: and how does article one section six fit io the discussion? mr. mitchell: you have to be an officer to be in line of succession. we have a federal statute th ts the speaker and the esident pro tem fair in line of succession. th are officers but not of the uned states because they are not subject to impeachment.

there is a is a gap bwe the term officer and the phrase ofce of the united states reinforcing the idea that officers of the united states are apart it does not just referred to federal officeholders. justice kavanaugh: to make sure i understand howoure using griffin's case. section three refers to insuecon and raises questions about who decides what processes are to be used that re ratified in 1868. the next year chief justi chase opines that states do not have the authority and that only congress has the authority to enforce that. that could be evidence as you say of the original bl meaning? your point i that it is reinforced because cones relies on that precedent in the enforcementctf 1870 and forms the backdrop against which

congress does legislate and as justice alito says, the storical practice for 155 yes s been that has the way it has gone where there have no been stated times trying to enforce disqualification under seio three against federal ofcers? etr that is a federal quidation -- do you want to add to that or alter that? mr. mitchell: that is exaly right and the last part is crucial to our argument. congress reliedn iffin's case and it provided the badr against which they legislated which is why we should read these mechanisms. it is a form of implied preemption. because congress made these decisions in explicit reliance on griffin's case. ste kavanaugh: and if we

agreeityou on griffin's case and what you are elaborated on there, that is the endf the case, right? mr. mitchell: unless congress decides to enact a statute. justice kavanaugh: a new -- and under -- you agree that someone could be osuted for insurrection by fera prosecutors a i convicted, could be or shall be disqualified then fromffe. mr. mitchell: the only caveat would be at our client is arguing that he has presidential imni so we should -- we would not concede. justice kavanaugh: understood. justice barrett: griffin's case was a lleral proceeding. could griffin have -- even if seion three is not a basis for collateral relsen habeas which was new at the time, could griffiha raised at his trial

or indirect appeal the aumt that judge cffee -- you cannot legitimately sit on my case because you are an insurrectionist and disqualifie -- could he have won then? mr. mitchell: not if griffin's case is correct. the court would have to reject the rationale of griffin'ca. justice barrett: i think there is some language that might be little broad but at bottom iffin's case is about a collateral habeas proceeding. griffin had broug h case after the fact, he nde a contract should't. why would it notork in a trial for him to challenge chaffee's constitutional ability to adjudicate the case? mr. mitchell: griffin's case holds that only congssan provide the means of enforcing section three. he would have to await

legislation from congress. justice barrett: let's assume i disagree with you about the officer argument so section three covers president tmp let's sath congress and arks provision that would allow a stat to bring such an action against him to removhifrom office. wouldn't that be in some tension with impeachnt heou be extracted from ofce outside of the process of impeachment. couldn't then president trump simply say, the only way to get me out of office is the impeachment process and not this action? mr. mitchell: i don't know how that would play out because the action that i am aref under the 1874 enforcementct requires --. your impeachment hypothetical uld apply only in the present

to any officer. i don't know how that played out in courts and if anyone ie to argue that impeachnts the only remedy -- justice barrett: y sd it is congress' exclusive province andou also said it has to imply only afteromne is holding the office and i'm asking if your ilition is that congress could not enact such- opposed to a state one. . tchell: the impeachment clause says the president, t vice president and the law officers of the united states can't -- should be removed. congress can defund a position and effectively -- the other relevant precedent is --gainst laird where the jeffersonians appeedhe midnight judgesct

. some people thought that was unconstitutional the chief justice upheld that. that to me as a relevant president showing impeachment is not thon way to get rid of a federa official. juicarrett: does president trump have any type of due process right here> --? this goes more to the question of what procedures he might have been entitled to. you don't make the argenthat he had any kind of constitutionally protectedig to ballot access and constitutionally entitled to a right to be heard? mr. mitchell: we made that argument below but not to this court. the proceedings quite charitably were highly irregular.

the question seems to suggest that there might be due process issues but we did not develop th for this court for several reasons. it does not do as mh r our client. justice jackson: going back to -- i gss'm just surprised with how you are replying to juste gan. i d not see any evidence that the presidency was top of mind for thfrers when they were drafting section three because th were actually dealing with a different su the pressing concern, at least as i see the historical record, was actuallwh was going on

at lower levels of the gornnt. the possible infiltration of embedding insurrectionist into the state government apparatus and the real risk that former confederates might retn power in the south via state-level election either at lol fices or as representatives of the state i congress. that is a very different lens. you are concerned that these people -- that seems to me very different than thwoied that an insurrectionist wldake control of the entire national government through the presidency. -- i'surprised you would given the context that seems to demonstrate that their concern was not about the presidency. i don't know why you are getting that argument up. mr. mitchell: there is some

exits -- some evidence to the just that. justice kagan: -- justice ckn: is there evidence? mr. mitchell: one of the drafts specifically mentioned the presidency and the vice presidency. justice jackson: but it was not the fil action. mr. mitchell: it was not the final enactment but it shows there s me concern about some people aboutonderate structuralists aenng to the presidency. did -- we looked at the historical evidence and the other side can get bacan throw out evidence back in our ce. we focus more on the text of the constitution because this was a compromise inection three. justice jackson: let me ask you another question because you have made any argument about the states not being able to enforce section three if we agree, what haennext?

i thought you wanted us to end litigation so is there a possibility of continues in federal court? mr. mitchell: i se how it could unless congress enacts a statute. justice jackson: we would have to sayonessional enacting legislation is necessary for either state or federal enforcement. mr. mihe: that is correct. justice jackson: the colorado supreme court concluded the violent attempts of the petitioners in this case to hold the count on january 6 qlies as insurrection asefed by section three. i read your opening brief to accept that those events accounted as insurrection. your reply seems to suggest they are not. what is your position? mr. mitchell: we never considered this was an insurrection. what we said is president trump did not engage in any act that

could possibly be characterized as insurrection. justice jackson: what is your argument that it is not? your reply says -- i think you say it did not involve any organized attempt to overthrow the government. mr. mitchell: tt is one of many reasons. there needs to be an organized effort to overthrow the united states through violence. justice jackson: a chaotic effort is not an insurrection? mr. mitchell: we did not concede it was an effort to overthrow the government. it was shameful but it did not qualify as insurrection as that term is used in section the. justice jackson: thank you. >> thank you, counsel. mr. murray. mr. murray: mr. chief justice,

we a here because the first ti sce they were 1812, our nation's capitalame under violent assault. the attack was incited by a sitting presenof the united states to srt the transfer of presidential power. engaging in insurrection against the constituti, esident trump disqualified himself from public office. as we heard, president trump's main argument is this cour should create a special exception to section three tt one apply to him and him alone. heaid section three disqualifies all both baking -- both breaking insurrectionists accepted former president who never before upheld -- held federal state or office. there is no rationale f a exemption and the court should reject the cim that the framers made an extra ordinary

mistake. section three uses deliberately broad language to cover all positions of federal power requiring oh to the constitution. theyla difference between an officend and an office of the united states but this does not come down to mer prepositions. just a -- the two phrases are two sides of the same coin referring to any federal office or anyone who holds o. president trump's other arguments for reversal ignore the role of the states in running presidential elections. der article two, states have the power to ensure their citizens' votes are not wasd on a candidate who is constitutionally barred from holding ofce states are left to safeguard theirallot by excluding those who are under age, foreign-born, running for a third presidential term, or as here, oswho have engaged in insurrection against

the constitution. i welcome the court's questions. justice thomas: do you have contemporaneous examples? shortly after the adoption of the 14th amendment where the states disqualified national candidates, not its own candidates? mr. murray: the only example i can thinkf is the example of commer and christie who was elected in geoian 1868. the governor of georgia declined to certify the results of that election because mr. christy was disqualified. it is not surprising that there are few examples because we did not have ballots in the same way back then. candidates were right i the would not have been a process for determining before an election whether a candidate was qualified, like the

processes we have now states created under article one and article two powers. justicthas: it would sm particularly after reconstruction and after the compromise of 1877 and dung the period of redeemers thayo would have that kind of conflict. erwere a plethora of nferates still around. there are any number o people who run for state offices or national offices. that would suggest there would be aewxamples of national candidates being disqualified if you're reading is correct. mr. murray: there were national candidates disqualified by congress refusing toee them. justice thomas: that is not this case. did states disqualified them? i understand congress wot. mr. murray: other than the

expli gave, no. that is not surpringecause there would not have been -- states would not have the authority to remove - justice thomas: what washe purpose of section three? states were sending people -- the concern was that the former confederat states would continue being bad actor the effortas to prevent them from doinghi you are saying this also thorized stes to disqualify candidates. when i am asking you for, if you arright, what are the examples ? mr. murray: the states excluded many candidates for individuals holding state offices. we have a number of cases of states -- justice thomas: i understand the states controlling state elections and state positions, what we are tainabout our national candidates. -- are national candidates.

you look at shelby foote or mcpherson, they talk about the conflict after the civil war. there were people who felt very strongly about retaliating against e south, the radical republicans. they did not think about thorizing the sth to disqualifyatnal candidates. that is the argument you are making and what i would like to know is, do you have any examples of this? mr. murray: many of tseave filed briefs, the idea of the 14th amendment was with states d the federal government would su rights and if failed to do so, the federal government would also step . the reason there are not examples of estates doing this is an idiosyncratic one, elections work differely states hava ckground power under article two to run

presidential ections. they did not use that power to police ballot access until the 1890's. by the 1890's, everyone had >> looking at justice's thomases -- justice thomas's question, estate shall not -- immuni, will not process it withoutue process. on t oer hand, it augmented federal power. coress has the power to enforce it. wouldn't that be the last place you would look for authorization for the states, including confederate states to enforce the presidential election process that seems to be a position at war with the whole thrust of the

14th amendment and very ahistoril. mr. murray: wwod locate the state's authority not in the amendment would in article two and that is plenary. chief justice roberts: you have no reliance on section three, is that what you're saying? mr. murray: we veeliance on section three so far as article two gives states this broad power to determine how their electors are elected and that power implies a narrower power to force constitutional qualificio. chief justice roberts: dinero power you're looking for is the power of disqualification. that is a very specificow in the 14th amendment and you are saying that is implicit the extended to the states under a clause that does notddss that at all. mr. murray: we would say nothing at the 14th amendment takes away fromhe ste their power to determine the mannerf selecting their electors in the manner they see fit. that power is nearly plenary --

nearly plenary a lesseni entity constitution tells states they cannot do it. the structure of the 14th amendmt s to expan federal power and restcttate power. at are bound to enforce section one of the 14th amendment. it is hard to see why states would not be similarly bound. >> states have the power to choose electors, granted. just because there is one authorized means under the constitution to a particular end does not mean there isny means to that end. i think you are taking tt electors argenand bringing it into section three where the chief justice says says there no historical evidence to support the theory of section the, nor to explain the overall structure of the 14th enent. mr. murray: we certainly have a

long history in this country of states using their power to determine the manner selecting presidential electors to enforce other qualifications in the constitution. i don't think there is a debe on whether orottates are allowed to - they could be cluded under the broad article. i don't see why section three should be treated any different. section 3 -- juickavanaugh: when you look at section thr, e turn -- the term insurrection jumps out anthe questions a, at does that mean? how do you define it? who decides whether someone engaged in it? what processes are appropriate for figuring out where someone did engage in that? that iwh they focused on as if to s these are difficult

questions. you look at the amendment and that tells you tt ngress has the primary role. what is different is the processe t definition, who decides. these questions jump out when you look at section three. yo rponse to that? mr. murray:here has to be some ocs for determining those questions. the question becomes does anything in the 14th amendment say only congress n eate that process? section five is not an exclusive provision. it is congress may have. >> the question you have to confront is why a single state decides who gets to be president of the united states. this question of whether a former president is disqualified for insurrection, justayt, it sounds awfully national. what means there are to enforce

it wouldugst they have to be feral, national means. if you weren't from colorado and you were from wisconsin or from michigan, with the michigan secretary ste did is gog to make the difference between whether candidate a is elected or candidate b is elected. that seems extraordinary, doesn't it? mr. murray: no, because it is ultimately this court that will decide that question of constitutional eligibility and selehe issue for the nation. it is not unusual that questions ofatnal importance come up -- juste gan: thisou would be saying some thing along the lines that the state hasow to do it. was asking and say why should that be the right rule why should a sine state have the ability to kehis determination not only for their noncitizenbufor the rest of the nation? mrmuay: article two gives emhe powero point their

own electors as they see fit. they are going to use a feraconstitutional qualification as a ballot access determinant, it is creatina federal constitial question this court decides. if this court affirms the decision below determining president trump is ineligible t be president, other states would haveo termine what effect that has on their own state's lien pcedure. justice barrett: if we said he was ineligible to be president, maybe yes. debbie states with say we will keep him on the ballot anywa it is going to have the effect of coro deciding. i want to push back on it is a nationalhing because this court will decided. you say we have to review colorado' factual record with clear error as ataard of review. we would be stuck with that record.

i don't want to get into wheth the rord -- maybe the record is great. what if the record wasn't? what if it wasn't a whole some record? the hearsay rules. what if this is just made by the secretary of much pce at all? howo review those factual findings? why should -- apply and doesn't that buckle back into this point that justice kagan was making, with mr. mitchell, too, that it doesn't seem like a state called. mr. murray: three points, your honor. the court reviews factual findings for clear error. president trump made the point in h reply brief that sotis on constitutional questions that require uniform resolution, this court can do an independent review of the record. we would have oection to that given the record here -- e cts that are disputed here are incredibly narrow. the essence of our case is president trump's statements he

made in public view for all to see. justice barrett: that is sin that in this context, if we review the facts, you want us to watch the video of the ellipse and make a decision without any deree to or guidance from lower court factinng? mr. murray: president trump himself urges this urto decide the millage others -- the merits ohieligibility on the factual record of page two. he has never at any point to suggested there is setng else that needed to ithe factual record, any other witnesses he wanted to call. the essence of our case is his own statements. in his own videotape statements -- >> i wanted to circle back to where justice kagan was. do you agree the states -- the state's power here over its

ballot has to come from some constuonal authority? mr. rr: members of this court have disagreed about tt. >> i am asking you. mr. murray: the majority of this court has said those powers come from article two. we think the result is the same whether the cour located in article two or rer power of the 10th amendment. justice gorsuch: y are not asking us to return to that -- it h tcome from some federal constitutional authority? mr. murray: no, we are not. justice gorsuch: we're not talking about the qualifatns clause. nobody is talking about whether he is 35 years old or natural born. not an issue. we are talking about something under the 14th amendment in section three. that is where you have to defined your ahoty, right? mr. murray: we find our authority in article two in a state's pow trun an election

. justice gorsuch: this is a federal office and it has to come from the constitution and you are seeking tonfce section three? mr. murray: we are suggesting in thr broad power to select presidential ects they see fit, they can keccount of section three. justice gorsuch: could ty do it without section thr? could they disqualify somebody on any basis they want outside of the qualifications clause? mr. murray: that would run into term limits. justice gorsuch: so it has to come back to section three. if that is true, how does that work given that secti three speaks about holding office, not who may run office -- run for ofce? it seems to me that you are asking to enforce an election context. provision of the constitution ea of holding office. it is different than the qualifications bau which is about who conducts the

qualification clause which is about who can run and serve -- it's about the alication because which is about who can run and serve. mr. murray: there is nothing constitutional about a 30-year-old trying to get on the ballot. justice gorsuch: except they can get removed under section three. thoughts on that? mr. murray: the fact that there is a provision for removing the disability does not negate the fact that e sability exists today and has existed since january 6, 2021hen president trump engaged in insurrection. justice gorsuch: were his actions after that date before he left office on coherence? -- walter baran's? is that whe ur argument leads? mr. murray: that y be the one place and a griffin's case where we agr wch is wn the justice that i talked to my colleagues and we unanimously agree you cannot collaterally attack all actions of any officer who is in fact holding

the position. justice gorsuch: let'circle back to where we started. seio3, 2 authority has to come from there. it is about holding office and a particular kind of disability at can be removed by congress. it is the only one like it that. they cannot remove age or citizenship. how does that form our thoughts about estate's efforts t regulate the ballot for a federal office? mr. murray: the fact that coress has an extraordinary removal power ds t negate that the disability exists tod and exists indefinitely into the future, chike the fact that the presen can pardon somebody for criminal conviction do not make that conviction somehow continge. i would note if president trump were appointed to any office today as a state judge, he could not hold that office which shows the disability exists now.

the fact that congress has power to remove the disability does not negate the present alications. nor does it bestow on presidt trump a constitutional right to run for office is he cannot hold in violation of state law and state pro under article two. there was a congressional action to commit competitor officers or people who supported the confederacy to hold office before the 1h endment, correct? there must have been a thought that there was pre-existing sqlification. mr. murray: that was right. there were a flood of ney requests before section three went into place -- went int effect because peoe understood those people would be disqualified the moment section three was enacted unless they ed amnesty. justice sotomayor: what do you

do with the consequences of your position? if colorado's position is he, there will be qualification ocdings on the others and some of those will succeed. some will have different standards of proof. some will have different rules about evidence. maybe the senate repo wld be accepted because it was hearsay. maybe it is beyond a reasonable doubt. i would expect, though my edtions have never been correct, a good number of states willay whoever the democratic candidate is, you are the ballot -- youreff the ballot and others, your off of the ballot. it will come down to a handful of states who decided the election. that is a daunting consequence. mr. murray: the fact that there are potential frivolous applications of a provision is not a reason -- chief justice roberts: you might think differently, bu the people who bring them don't

think they are frivolous. insurrection is a broad term. if there is debate about it, i suppose that will go into the decision andventually if there s insurrection when one president did somethg opposed to when someone else did something else, what do we do? we wait until near the time of cutting the ballots -- counting the ballots for which states are valid and which aren't? mr. murray: there is a reason ction three has been dormant, we have not seen anything like january 6 since reconstruction. insurrection against the constitution is something a short mary. chief justice rort it seems to me you aravding the question which is othestes might he fferent views about what cstutes insurrection. you are saying is all right because somebody will decided they thought that was in insurrection but they were wrg. maybe they thought it was right and we have to develop rules for what constitutes an insuecon. mr. murray: just like this court interprets other constitutional

provisions, this court can make clear that it is something extraordinary. it requires anonrted group effort to resist through violence, not some ordinary application of state or federal law, but functions mandated by -- justice kavanaugh: on your point that it has been dormant 155 years, the other side with safety reason is chief justice's opinion in 1859 which says congress hasheuthority here, not be states. that isolwed up by the enforcement act of 1870 which coress acts on that understanding. there is no history contrary that period as justcie thomas: pointed out -- justic thomas pointed out. there is no example of states exercising such authory. the reason it has been dormant is because there has been a settled understanding that chief justice chase was essentially right and therahes of the

government have acted under that understandingor55 years and congress can change that. congress does have section 23, the insurrection act criminal statute. congress could change it but they have not in 155 years. mr. muay n the reason it has been dormant is because by 18 76, all former conferes had received amnesty. we have not seen anything like any insurrection since then. i would like to address your chief justice roberts: justice alito. justice alito: i don't know how much we can infer from the fact we have not seen anything like this and therefore conclude we are not gog see something in the future. from the te the impeachment of president johnsonnt the impeachment of president clinton , more than 100 years later, there were no impeachments of presidents.

and fairly short order over th last decades we have had three. i don't owow much you can for from that. mr. murray: this ur can write any opinion that emphasizes how exaordinary insurrection is and how rare that is. it requires an assault not just on the application of law but on constitutionally mandated function we saw andre with six a coordinated attempt to disru a function mandated by the 12 amendment and essential to the transfer of power. >> let me ask you about if the power you describe disciplinary really plenary. supposth outcome of an electionor president comes down to the foot of a single state -- to the vote of a single state. suppose candidate a gets a majority of e tes in that statbuthe legislature does

not like candidate and thanks caidate a is an insurrectionist so the legislature passes a law ordering to vote for the other candidate. do you suppose the state has that per mr. murray: there are principles that come into play in terms of ter the people have voted that the state cannot change the rules. i am not sure because i'm not aware of this court addressing it. justice alito: let's change it so it is not after the election. three days before the election based on the fact that the polls in that state look bad. can th d it? mr. murray: ihi they could under this court's decision when this court emphasized for much htory state legislatures assigned electors themselves but that would be work ordinary than what we have here which is simple application of normal state ballot access principles to say we're only going to put on an individual qualified to asmehe office. chief justice roberts: can i ask

you the question justice gorsuch asd? look at that going fwa rather than judging on the baluchi g on the validity of anact committed between a time when a president allegedly engages in insurrection an leaves office. during that period, would you be lawful for military commanders and officertoisobey orders of the president in question? mr. murray: i am not sure anything gives military officers the authority to adjudicate the legality of the presidency. justice alito: is a he happens.fied from the moment it i understand that the diff are -- the de facto doctrine might be used to prohibit people from using judicial remedies for decisions that take place after the date he s squalified.

ife in fact disqualified, from that ment, why would anybody have to obey a direction from him? mr. murray: ultimately there has to be some procedure in place to adjudica t qualification. congss can impeach a sitting prident but that is the only remedy for negating the authority of a sitting president. justice alito:hy? section three speaks of disqualificationroholding office. he say h is this qualified from hoinoffice from the moment it happens. mr. rr: crect justice gorsuch: you say there iso legislation necessary. i thought that with the o3 of your case. no procedure happens automatically. mr. murray: you need a procedure to have a redto enforce the disqualification. justice gorsuch: that is a wle separate question. that is the de facto doctrine. that doesn't work here.

he is disqualified from the moment, self-executing, done. i would think a psowho would receive a direction from the former psint in your view would be free to act as he or she wishes without regard to that individl. mr. murray: i don't thk . justice gorsuch: wipe? -- why? . murray: effecve- the de facto prosi would come into play. justice gorsuch: that is not work. puit aside. justice alito asked a different question, i think it deserves an sw. on your theory, would anything compel a lower official to obey an order from the former president? mr. murray: i am imagining a situation where a rm president was elected and they

were 25 and ineligible -- justice gorsuch: no. we arealng about section three. plseon't change the hypothetical. i like doing it, t. he is disqualified froth moment he made any insurrection, whoever he is from whatever party. that happens. it happene what would coml -- try to into theueion -- to answer the question. what would compel a lower invial to obey that individual? mr. murray: we have rules requiring chain of command. a person is in the offic even if they don't have authority to call the oice, the only way to get the office of the presidency is impeachment. if you interpret section three in light of other provisions, while they hold oic impeachment is the only way to validate they do not have the ability to hold that oice and should be removed.

>> can i ask you about sometng justice kagan brought up? uniformity and the lack treof if states are pmied to enforce section three in presidential elections. i ess i did not really understand your argument or your response. mr. murray: if congress is concerned about uniformity, they can provide legislation and preempt state legislation. >> is not necessary. mr. murray: it is not necessary. in t lk of- either the absence of federal- a state adjudicates them. if the state has not provided e process to comport with due process, one can make those challenges. assuming as here we have a full evidentiary record and any opportitto prevent edee. justice jackson: i understand we

uldn't resolve it so we have a uniform ruling on it. my question is, why the framers would have designed a system that could result in ierim this uniformity we have elections pending and diffent states suddenly saying you are eligible and you are not on the basis of this kind of thg. mr. murr: what they we concerned about was assuring insurrectionists and rebels don't hold offic one understands the imperative they had to ensure both breakers would not take office. it would be odd to say states accouncaforce it -- cannot enforce it, only the federal government can enforce it and congress can rip aea out of section three by a simple majority. creates redundancy. the fact that states have the ability to enforce it absent federal preemptio provides an additional lay osafeguards. justice jackson: i will ask you

about the history when i get a chief justice roberts: justice thom justice alito. justice alito: suppose there is a country that proclaims again and again that the united states is its biggest enemy. suppose the president of the unitedtas for the mac reasons thinks it is in the best interest of the u.s. to provide funds or release funds so they can be used by that country. coula state determined that person has given aid and comfort to the enemy and therefore keep that person off of the ballot? mrmurray: this court s never interpreted the eight and comfort language which is in the trson clause. itaseen really applied beuse treason prosecutions are rare. commentators have suggested that aid and comfort only applies in

a declared war or any adversiarelationship where you there -- wherehe is in fact a war between two countries. the standard would do a lot of work there because under section three, whatever e underlying conduct is, it has to be done with the intent to further the purpose of the insurrection or aid the enemies. justice alito: let me come back to the question ofhawe would do if differt states had adjudicad e questionf whether former president trump is an insurrectionist using a diffen record, different rulings on the admissili of evidence, perhaps different standards of proof. what would we do mr. murray: ithere were deficiencies in the record, the court could refuse to hear the case or decide based on deficiencies of the record. justice alito: we have to decide

what is the appropriate rule of evidence that shlde applied in this case? would we have to decide what is the appropriate standard of proof? would be given any difference to these findings -- would we give any difference to these findings? would we have to have our own trial? mr. murray: no. this court takes the evidentiary record as it is given and here have edentiary record agree tt the parties agree it is sufficient in this case. ere is a possibility of an independent review of the fact. ultimately what we have is any insurrection incited -- justice alito: you are not answer my question. it is not helpl. suppose we have two different records, two different bodies o evidence, two different rulings on questions of the disability, two different standards of proof, two different sets of fact-finding by two different judges or maybe multiple judges

in multiple states, what do we do? mr. murray: ts urt would set the legal standard and then decide which of you the record was correct. justice alito: which view of what record? mr. murray: if this court had two cases and both of the records were sufficient insofar as both have the opportunity to present -- theiras, then this court would have toook at the evidence presented and decide which holding was correct and decide that issue for the country. when there is a complete record, the recordsilbe applying the decision. i tnkt is unlikely any court would say weilreach a differentecision than the supreme urdid, particularly if the court relies on the fact of wt esident trump said on video and in his twitter feed which is the essence of our ca. justice alito: y h an expert

testified abou the meaning of what president trump said. doou thinkt is possible in a different state court -- a different state court would apply to alberta differently and say this person shou n be allowed to prs an expert opinion on that question? do you thinkhat is beyond the realm of imagination? mr. murray:. not at all. number one, president trump did not appeal the admission of that evidence. number two, the point is producing me did not opine on the meaning of trouble'sords, on the effect of those words had on extremists. the essence was around videotaped statements of trump himself encouraging and praising political violee. justice alito: i am not taking a posionne way or another about whether the expert's stimony should have been mitted or anything like that or the meaning of president trump's words, i am trying to get you to grapplwi what some people had seen as the

consequences of the argument you aradvancing which is that there will be conflicts and decisions among the states. different states will disqualify different candidates. i am not getting a lot of help from you about how this would not a unmanageable decision. mr. murray: this court writes affirming othe effects of what president trump said on january 6 and the weeks leading up to it and his virtual concessions on twitter after the fact, it would reversible for any state to conclude otherwise on that question of federal w or list this court can address that windows issues come up. it seems unlikely. chief justice roberts: justice sotomayor? justice sotomayor: there are two sides to the other side's position. the first is tt not self-executing -- some executing.

-- it is not self-executing. they want to say even congress cannot do it because they need implementing legislation. address that argen rule that states don't have it , what would you have a say for the other side of the argument? one of my colleagues says -- circuicot justice said somehow i need implementing leslation like the 1870 act. you seem to say that is not true because they could decide not to

seekheandidate so i don't know if legislation is necessary. mr. rr: there are examples under congress's power to judge the qualifications of its members, neighbors of mmce refusing to seat candidates who won an election. in the context of the presidency, it would create a numberf fficult issues if the court says there is no procedure for determining president trump's eligibility until after the election and then what happens when members of congresar generally sth say we are not going to cut elecravotes cast for president tmp because he is disqualified under section 300 electoralount. a number of briefs have made the point that that is disenfranchisement and more the reason to adeshis issues now in a judicial process. everybody can have certainty on those iues before they go to the polls.

justice kagan: you relied on the state's powers under the elector clause you talked authe states having a role in acting enacting vid provisions -- ballot provisions. we have put some limits on that. i will give you anderson versus a busy as an example. states are limited in who they can take off of a ballot. that was a case about minor party candidates. e reason was one state's decision to ke ballot off of -- a candidate off of the ballot affects everyone el's rights. we talked about national interest and the seleconf candidates for national office. but talk aboutow any individual state disn would have an impact beyond its own borders. if that goes for minor political party candidates, why does it not go for the situation in this

case? mr. murray: constitutional principles like section three apply to everybody. the issuthe was a first amendment question. there is no doubt thattates exercise their power under article two cstrained by first amendment principles. in that case, the state law deadlines for any minor par candidate are on the ballot came too soon to be reactive to what major parties have done and therefore riskisfranchising peopleitwho the major parties have picked. here there is no first amendment problem. a ate is trying to enforce an existing qualification baked into our constitutional fabric. juste gan: there is a broader principle there about who has power over certain things in our federal system. states have great pow or many different areas. there is some broaderriiple

about that there are certain national questions. states are not the repository of authority. i took a lot of anderson's reasoning. what is this data dng -- is a ste ing the siding -- deciding who other citizens t to vote for for president? mr. murray: lodo is not the siding who other states get to vote for president, is deciding its own electors under article two. justice kagan: the effect of th is obvious, yes? mr. murray: no, different states can veifferent procedures. some states can allow insurrtiists to be on the ballot. we are not looking into constitutional questions. even in this election cle, there are candidates on the ballotn me states even though they are not natural born citizens. that is a function of states

power to preserve their own electors and avoid disenfranchisemethei citizens. justice kagan: thank you. chief justice roberts: justice gorsuch. justice gorsuch: i have not had a chance to talk about the officer point. mr. mitchell makes t argument that in the commissions clause, all officers are to be commissioned by the president it seems to be allncpassing, that language. i am curious your response to that. ong the way, i poked at the difference between oicand officer in t oer discussion. one pot ur friends on the outside would make -- on the other side would make is that is how the constitution uses those terms. when you're the president pro tem of the senate and is bigger ofhe house are officers of th

united states because the constitution says they are. you al kw they don't hold any office in thuned states cae of the incompatibility clause that says they cannot. maybe the constitution to us to delay reader might look a little odd. not preposio, nouns, a distinction. maybe that is how it works. oughts. mr. murray: i would start with the idea that the meaning of officer in the 1780'is the same meaning today which is a person that holds any office. in certain contexts, it appears that is referring to a narrower class of officers. justice gorsuch: is says all. mr. murray: we know there are classes of officers like the president pro tem we don't get commissions from the president. justice gorsuch: that is best because -- that is because the constituonays elsewhere. mr. murray:- tting the

commission from the constitution itlf rather than appointment. people who get commissions from the president are not commissioned by the president. if you read the clause, the commissions clause is talking about the president'sow if one needs a mmsion, the president grants it. it is important to bring us back to section three. stice gorsuch: a distinction between office and oic. you agree the constitution does make that distinction, particularly with respect to the spear o tem? mr. murray: t constitution makes that distinction at least in section three, any officer of the united states is a person o swears an oath and holds any office. the president pro tem and speaker of the house don't swear it constutnal oath in that capacity. case where an oath that they are a senator or revisit if in congress. justice gorsuch: there are officers who do not hold any

office? mr. murray: there are officers who may hold any office but don't sweaanoath. justice gorsuch: how can they hold any office under the incompatibility because - incompatibility clause? mr. murray: that may be an exception to the general rule and some may consider them officers of thhoe and senate cause they preside over those bodies. justice gorsuch: the constitution says they are officers of the united states. there are some institutions -- some instances where you have any officer but not any office. mr. murray: those may be existent in some circumstances. justice kanah: other questionabt different states having different standards of proof sm derscored by this case, the dissentingpinion where justice amore said i have

been involved in the justice system3 ars now. what toople here does not resemble anything i have seen in cotroom. and then added, "what transpired in this litigation fell short of wh do process demands." i d't know if i agree or not, but the fact that seo is complaining about the bottom line conclusion but the processes used in this state and at that would be permitted underscores the concerns raised about state power. i want you to have a chance to address that because that is powerful language. not about the conclusion but the fairness of the process. mr. murray: that ngge with respect to justice more was not correct. president trump had a five day trial, he had any opportunity to ll any witnesses. we had an opportitto cross-examine witnesses.

he had the opportunity to testify. the process was expedited because ballot access decisions are always on a fast schedule. from the trial court up to this court, president tru h never identified a single process other than expert definitions he wanted to have that he did not get. he had the opportunity for backwardness definitio, he had the opportunity to call tnses remotely. there was ample process here. this is how ballot access determinations in econ cases are decided all the time. justice kavanaugh: some of the rhetoric of yo posio seems to sgest unless the states can do this, no e n prevent insurrectionists from hoin federal office. congress has enacted statutes, inudg one in effect, prohibits insurreio a federal criminal statute. if you are convicted, you shall

be disqualified from holding any office. there is a federal statute on the books but president trump is not charged with that. what are we to make of that? mr. murray: section 23 was enacted six years before section three. i would emphasize that by the time section three was ratified, most confederas d received criminal pardon. justice kavanaugh: the question is dfent whichs if the concern you have, which i understand is that insurrectionists should not be able to hold federal office, the residual to ensure that does not happen, nel federal prosecution insurrectionists. if convicted, congress made clear you are medicallbaed from holding a federal office. that truly existancould be used against someone who considered joshua committed insurrection.

-- someone who considered -- someone who committed insurrection. mr. murray: that is right. section three made clear that criminal prosecution is not sufficient because oftentimes insurrectiis go unpunished as was the case in the civil war. even if we don't have the stomach -- stice kavanaugh: a provision was in effect from 1870 to 1948, but that dropped out and has not been seen as necessary since then. in trying fure out what section three means to the exnt of the language, what about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice , letting the people decide? urosition has the effect of senfranchising voters to a significant degree.

does that come in and we think about should we read sti three this way or re ithat way? what about the background principal that democracy? mrmurray: i would like to make three points. constitutional safeguards are for the purpose of safeguarding our democracy, not just for the next electn cle but for generations to come. section three is designed to protect our democracy in that way. the framers knew from painl experience that those who had broken their oath to the constitution could not b trusted to hold power becau they could dismantle our democracy from within. theyreed a democratic safety valve. umcan ask congress to give them amnesty, butnless he does that, r constitution protects us from insurrectiis. this case illustrates the danger of refusing to app stion three has written. the reason we are here is

president trump and triedo disenfranchise 80 million americans who voted against him and the constitution does not require he be given another chance. chief justice roberts: justice barrett. justice barrett: the road is that absent rare circumstances, state courts and federal courts sharauority. there e certain limits to tt , limits to which the constitution preempts the state's ability to resolve constitutional qstns. you said earer that once a president leed, you accept a stagg uld not do anything about that. colorado cannot enact its own provision and use it g the secretary of state out of office i assume that is because of this inple of structural preemption? mrmuay: yes, your honor. justice barrett: i want to clifwhat that means. that means your aches are in the

basket of the electorate clause. you are saying that even though all of t qstions have suggested there is a problem with gina single state the authority to render a decision that would have any effect on a national election, you are saying those structural concerns which gh otherwi ld to the kind of results you would accept after someone is in office, overcome by the electric cross. mr. murray: absolutely. states run presidential elections. what states have selecd electors and they have voted, states have no more power over the candidate who has been nonated. until then, the states have the power to adjudicate those issues. justice barrett: thank you. chief justice roberts: justice jackson. justice jackson: when i asked you about the uniformit concern and the dish uniformity of vi different states eorce section three with respect to

presidentiallections, you seemed to point to history ia certain way. you said i think the ams envisioned states and forcing section three -- states and foinsection three at least in some circumstances. in my view of history, i am wondering whether presidential elections we sh a circumstance that the ams actually envisioned stas d forcing section three wit respect to presidential elections as opposed to senatorialleions, representativesmore woeful concerns. can you speak to the argument at section three wasbo preventing the south from si again in the context of the local elections as opposed to focusing on the presidency? mr. murray: two points on that, first was as i discussed

earlier, there is not the me history of states regulating ballot access. ballot access rules to restrict presidential candidates would not have existed. they would not have been raised one way or another. justice jackson: i'm not making it a station between ballot access and anythinel. mr. murray: understood. what is very clear from history is the framers were concerned about charismatic rebels who might rise through the ranks up tondncluding the united states president. justice jackson: why don't you put president in the enumerated list in section three? the thing that is troubling to me is i understand your argument, but they were stg people that were barred and president is not there. i guess that makes me wri they were not fosi on the president. for example, the fact that electors of the vice president and president are there suggest

if we are worried authe charismatic person, we are going to bar insurrectionists electors and therefore that person is no longer going to re. mr. murray: this came up in the debates in congress over section three where johnson said why have you not include president and vice president in the langua? senator moore response, we have. any office under the united states. juicjackson: doesn't that suggest ambiguity? this ties into justice kavanaugh's point. we had a perso at the time saying what i am saying, the language does not seem include president. why is that? if there is ambiguity, why would we construe i to >> johnson came back -- it is clear that the constitution says about 20 times. christ let me just say.

your pnts that there is no ambiguity. with this conversatn where the legislators actually discussed what looked like ambiguity, you are sayi tre is no ambiguity. >> this ismportant. they do not hold an office. they vote. >> i'm talking about the office part of this. >> fstou have to specify electors. they would notalunder any office. th do not hold office. the constitution told us that under the clause and refers to them. you want to make sure that there is no doubt the area covered, given that this conition

suggests otherwise. other high offices, the president, vice esent -- wes i appreciate that argument. if we think that thste cannot enforce this provision for ater reason, in this context, what happens next in thisas is it done? >> if this court ccles that colorado did not have the auority to exclude trump, i think thisaswould be de, but i think cld come back with a vision -- with a vengeance because they would have t make the determination about whhe or not he is disqualifiedro offe. president trump himself looks to

resolve. >> there is no fedal litigation, you would say? >> that is correct. short of criminal prosecution. >> thank you, counsel. >> mr. chief justice, may it please t crt. far-reaching powers under the clausepefically directed colorado's court to resolveny allenges to any candidate on the presidential primary ballot. they contend that colorado mt put him on the ballot because of the possibility of a super majority act of cgrs.

unr this theory, colorado and every other state would have to indulge this possibili n just for the primary but through the general election. nothing in the constitution strips them in this y. the case was handled caplynd efficiently under a process that we have used to decide ballot challenges for more than a century. i welcome your questions. >> is tren express provision that the -- that defines what a qualified candidate is? >> there is not an express provision. they look at the need to be qualified. >> how do we get to this issue

of qualified candidates? >> if i could have a standing objection, you should not review -- >> i'm just looking at the statute. >> w have three important provisions that show that candidates have to be qualified. it requires that the political party has to have a candidate. e ndidates also have to be qualified. >>e e actually talking about the participation of a political party, right? not the participation of a candidate. >> the fight -- the fact is confirmatory that they had to be qualified and would note otherwise. >> how is section three qualification? just on its face

>> a candidate must meet every criteria for eligibility. nobeg disqualified. there is a difference between those two things. >> you represent the secretary of state, right? if you are the secretary of state and e comes in to say, i think this candidate should be disqualified, what do next? >> if they obtain objective information, the secretary can act on that. >> the secretary deces that? >> in some instances. the alnge was brought before the paperwork h even been submitted. because there had already been a challenge submitted, the secretary did not even make the determination. >> in another case erthat was not the procedure that was

filed, maybe they had ata of paper saying, i think this is y the person is guilty of insurrection. it is something that hped down the street, but they say this is still an insurrection. >> anything not even prend that level of controversy would sit in -- if another individual who brought the information brought it, the secretary could bring at action. >>s ere any provision in lorado and with what you know about other states? >> a can use the 113 process to do so. there are other stas at allow other versions of that.

>> i think we are told that there are states that do not provide for review. is that incorrect? >> i think that is correct. some do not have a mhasm to come to. there are some states that do not have a mhanism to exclude a candidate from the ballot at all. i want to speak about -- would that b constitutional, if the secretary of state's determination was finally? >> i think that would be cotitional. they had a broad authority. >> can a state that provides different rules evidence and different standards of proof

with this proceeding >> it is under the same power. >> perhaps a different provio >> there are other constitutional constraints. >> what is the due pro right? what is the liberty interest? >> i think there is a recognition and there is some due process interest in being able to process the ballot. >> i thoug tt was for voters. did you think it would be taking something away from the caidate? >> candidates can have aise about being on the ballot.

it is a qualifications clause all stacked together. >> these decisions might be made different ways. itak it ia very specific process. would our record very depending on the procedureepyed by the state? >> i think they have dcrion. it might be based on the process employed ban individual state. you could exercise independent review or you could give deference to aul proceeding. >> i'm cite. younk we should give rence in reviewing the factual record and conclusions?

website and amenable to suestion for independent review as to what the court's position is. >> we could reach disparate results on the same record, right? >> i that possible. >>hidisqualification is the same as anotr disqualification. residents or what ha y. >> that is correct. >> what if i push back on that and sa this disqualification to the point of the 14th amendment wa to take away certain powers. nuer two, section three itself gives congress a very defite role that mr. mitchellayis interfered with by the ability of states to take somebo off the ballot.

it is ju me complicated and more contested. why don't all of those things make a difference? >> i think the trouble with categorizing it is an assumption that is coming up because of this case. back to the chief justice's int, we could have an easy case with a insurrection who ote on his paperwork, i engaged innsurrection. it would be an open and shut case as to whetherr t that person would meet the quifications to be on the ballot. my positions are based on the states having the power to enforce section three like we do other qualifications i would defer to them on those points.

>> suppose a state that does recognize and makes the teination to adopt that particular candidate as in insurrectionist. could have a cascading effect that a decioby a single judge wseactual findings are given deference, maybe a trial judge would have an enormous effect on candidate to run for president across the countr is that something that we should be concerned about? >> the cce is maybe not as high as it could be. there is a huge amount of disparity in different states and every election. there is a candidate that they disqualified on the ballot.

itas feature of our process with respect to decision-making, we give nationwide guidance. that reduces the potential ou of dispatyetween the states. with respect to the ftu record, ey have processes for this. i think we need to l that play out becsehat is what the electors clause assumes will happen. congress can act at anti, if it inks it will run amok. >>e have been told that if

what coladdid here is sustained, other states will retaliate. they will potentially exclude another candidate from the ballot. what about that situation? >> i think we need to have states in our syemhere if they follow the processes appropriately, they llake realistic views of what insurrection is under the amendment. do not think that this court should take those threads too seriously in its resolution in this case. >> you do not think that is a serious threat? >> i think we have institutions in place.

the administrators to enforce the rules, the crtthat will review -- that will review. >> justice sotomayor? justice ugh? justice jackson? thank rebuttal, mr. mitchell? >> they rely heavily on the authority that it gives the legislature of each state to dire t manner o electing it must be consistent. there are others. a ste cant instruc

electors only to vote for white candidates. r can it violate the constitutional holding and they cannot use the electorat clause as an excuse to impose additional to go beyond the nstution. e problem with what it has done ishat they have changed the criteria in section three by making it a requirement that must be met before the candidate who is seeking office actually holds the office, essentially moving forwa i time. there has still been no and there on how toistinguish the residency cases, where the court of appeals and applying this court's holding have unanimously

disapproved state laws, requiring congressional candidates to show that they inhabit the statero which they seek elti prior to election day. there is still no possible way to distinguish those from the situation below. mr. murray also inved the consequences that would follow that rejec tatnality and it agrees with section three as an officer of the u.s. ficers that are appointed made cisions that were invalid. this court did not use any variant to saagthe decisions

that were made by the oics. there is no way to escape the conclusion that if they reject th case and also agrees with section threth every executive action taken by the um administrio during his last two weeks in office is vulnerable to attac if he is reelected and sworn in, any executive action he takes in federal court by anyone who continues to believe that president trump is barred from office under section three. i'm happy to answer any other questions that the court might have. >> thank you, counsel, the case ubmitted. >> the honorable court is no adjourned until the 16th of february at 10:00.

>> a look outside the supreme court as the justices just wrapped up over 2.5 hours of oral argument on former president trump's appeal to reverse a colorado springs ruling that he is not eligible to be on the primary ballot. they found she violated the 14th amendment to the constitution and supported in insurrection in the january 6 capital attack. it will be held in less than a month. we will watch the scene outside the court and we are -- we will see them making remarks.

>> c-span is live outside the supreme court after hearing oral argument to a supreme court ruling that removed him from the primary ballot. we could be hearing from some of the lawyers that argued the case outside the court, but before that, we will take a look at republican senators who spoke to the press before the arguments outside the supreme court. >> good morning. welcome to the supreme court building, a place today where people inside will make a decision for the future of our country. we actually are for democracy and we ask you to stand for the right to vote