Q&A of the Day – Will the Supreme Court Side with Trump on Ballot Access & Presidential Immunity?
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Today’s Entry: @brianmuddradio Brian, do you personally believe the Supreme Court will hear both the ballot question and the immunity question? Do you think they rule #45 must stay on ballots and that #45 has presidential immunity and Jack Smith’s J6 case be dismissed?
Bottom Line: That’s a lot of potential speculation but as always there are two sides to stories and one side to facts and my opinions are guided by the facts. For that reason, I have a strong sense of what I believe will happen with the ballot access case(s) and also an inclination of what might happen in the presidential immunity case. Let’s start with the ballot access case. First, there are two separate legal challenges. One that is being appealed to the Supreme Court – the Colorado case, and one that’s currently being appealed to a state’s Superior Court – the Maine ballot access case (following the state’s secretary of state deciding to remove Trump from Maine’s primary ballots citing the Colorado Supreme Court ruling). Nevertheless, the legal principle remains the same. Until the Colorado Supreme Court ruling on December 19th, legal challenges in states attempting to remove Donald Trump from ballots had been 0 for 4. And there was a reason for that. The constitutional law on this is clear. Section 3 of the 14th Amendment to the Constitution reads like this:
- No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
A lot of constitutional law is complicated. This clause, however, is rather straightforward in part due to the level of specificity within it. Notice that nowhere within that Amendment, which is very specific as to the offices which can be disqualified under it, do you find the office of the Presidency of the United States? It specifically states offices that are disqualifying under that clause as: a Senator or Representative in Congress, or elector of President and Vice-President. Why, if this clause was meant to prevent someone from becoming president, does it state that one can’t be a Senator or Representative in Congress, or an elector of the President and Vice-President, but not also specifically state President or Vice President of the United States? Details, right? Details that were so significant that even the original left-wing judge who issued the ruling in Colorado, referenced that not-so-insignificant detail in the issuance of her ruling.
While taking the activist stance of ruling that Trump engaged in insurrection in her 102-page ruling, even then, Judge Sarah Wallace said it was insufficient for the purpose of removing Trump from the ballot. Quoting Wallace: Part of the Court's decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three. That context is key as we attempt to discern just how off base the four Colorado Supreme Court justices, who ruled to strike Trump’s name from the ballot were in their decision. While all seven were appointed by Democrats, the three dissenters said it well in their dissenting opinion. Specific to the use of the “insurrection clause” for the removal of Trump from Colorado’s primary ballots, on page 144 of the 213 page ruling, it’s stated: Only a two-thirds majority of both houses of Congress can overturn a Section Three disqualification. U.S. Const. amend. XIV, § 3. This remedy is extraordinary and speaks volumes about the gravity of the disqualification. Such a high bar indicates that an expedited hearing absent any discovery procedures and with a preponderance of the evidence standard is not the appropriate means for adjudicating a matter of this magnitude.
Well, bingo. Donald Trump has been indicted in four criminal cases with 91 different charges brought against him. Not one of those charges is for insurrection which was the premise of this and any case before state courts seeking to remove Trump from the ballot. Think about that. In a federal witch hunt designed to get Trump, there wasn’t enough evidence to even attempt to bring related charges against the former and perhaps future President of the United States. This includes one of the criminal cases being entirely brought based on Trump’s alleged role in the January 6th riot at the Capitol and alleged role in attempting to overturn the results of the 2020 presidential election. The bottom line is Trump could be found guilty in all of these cases, and on all of 91 of the outstanding counts against him and yet would still not be guilty of doing what’s necessary for one to be disqualified from running for president or holding the office of the presidency. Yet the Colorado Supreme Court not only decided Trump was guilty of insurrection, but then to be removed from the state’s ballot, citing a clause in a constitutional amendment which doesn't allow for the removal of one’s name in a presidential contest, even if found guilty.
It’s a patently absurd legal argument to suggest voters shouldn’t even have the option to vote for a presidential candidate due to a crime he’s not even legally alleged to have committed. And where, in a non-criminal but political context, the authority for disqualification rests, a charge that Trump was acquitted of having committed by Congress during impeachment proceedings – which stands as the legal precedent in the case. For all of those reasons I do believe that the United States Supreme Court will take up the ballot access case and I agree with Trump attorney Alina Habba who said after the ruling...there’s a 100% chance this decision will be overturned on appeal to the United States Supreme Court. As for the presidential immunity case...that’s another story.
The United States Supreme Court did recently hand the Trump legal team a procedural win when the court denied Special Prosecutor Jack Smith’s request to fast track his January 6th case by having the Supreme Court rule on the Trump legal team’s challenge to the prosecution citing “Presidential Immunity”. By deciding not to bypass the Federal Appeals Court in Washington D.C., which will now consider the case, it places the current start date for that case – which is March 4th in doubt. The Trump legal team is interested in delaying any and all criminal prosecutions as long as possible. The Supreme Court did aid in that strategy by allowing the usual course of legal affairs to play out in this case. However, at whatever point the decision would be before the court, I’d think it would be unlikely that they’d fully side with Trump on Presidential Immunity.
Article II, Section 3 to the Constitution is where the general context of Presidential Immunity is derived. However, the constitution doesn’t specifically address legal immunity for a president from criminal or civil lawsuits. That’s historically left all related challenges up to the courts to decide. The idea of Presidential Immunity as it exists today largely stems from the 1867 Supreme Court decision in Mississippi v. Johnson which stated: The Court had no jurisdiction . . . to enjoin the President in the performance of his official duties. Therefore, the legal precedent has been set that if a president is performing official duties, there’s legal immunity. If, however, it’s determined that he’s not conducting official business he could be held legally libel. I think it’s unlikely that the Supreme Court would make a ruling definitively stating that all of what Trump’s alleged by Jack Smith to have done would be considered official business without a trial having first played out establishing those facts. For that reason, I’d be surprised if the Supreme Court stepped in and essentially made most of Trump’s legal issues go away.
So, my inclination is a yes, on ballot access and no on presidential immunity. Of course, the longer the legal processes play out...the greater the chance the federal cases could be a moot point. Should Trump or another Republican become president, he could be pardoned of all federal charges. That’s why, among other reasons, the Trump legal effort to delay proceedings is potentially a winning one, one way or another.