Politics
Five ways the Supreme Court could rule for Trump on the 14th Amendment
Now that the Supreme Court has heard arguments in the case of President Trump and the 14th Amendment, it seems clear which side will win. The big question is what route the justices will take to allow him onto the ballot.
In the course of more than two hours of oral arguments Thursday, eight justices advanced at least five paths they might take to rule in Trump’s favor.
Only Justice Sonia Sotomayor seemed to seriously entertain the idea of ruling against him.
Here’s a look at where the court may end up.
What’s at issue
In December, the Colorado Supreme Court ruled that Trump was ineligible to appear on that state’s ballot because of the 14th Amendment, which was adopted after the Civil War. The amendment’s Section 3 reads:
“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.”
The amendment was designed to keep former Confederates from regaining power in the U.S. government, but it still has effect and covers Trump, the Colorado court ruled.
The decision had four key elements:
- As president, Trump had “taken an oath … as an officer of the United States” and is therefore covered by the amendment’s language.
- Based on a five-day hearing in a Colorado trial court, the attack on the U.S. Capitol on Jan. 6, 2021, was an “insurrection.”
- Trump “engaged” in that insurrection through his words and deeds.
- Under the terms of the amendment, he is ineligible to “hold any office … under the United States,” including the presidency.
The U.S. Supreme Court justices seemed skeptical of all four elements.
Who gets to decide?
The argument that appeared to attract the most support among the justices questioned the state’s power to decide the case at all.
“Why should a single state have the ability to make this determination, not only for their own citizens but for the rest of the nation?” Justice Elena Kagan asked Jason Murray, the lawyer representing the voters who challenged Trump’s eligibility. “That seems quite extraordinary, doesn’t it?”
Murray insisted that Colorado was deciding only for its citizens and its ballots. What the state did was no different from what others have done in excluding candidates who were too young to hold office or weren’t born in the United States, he said.
Kagan was clearly skeptical. A ruling upholding Colorado’s decision would have nationwide impact, she said.
“There are certain national questions where states are not the repository of authority,” she said. “What’s a state doing deciding who other citizens get to vote for for president?”
The 14th Amendment was “designed to take away powers from the states” after the Civil War, she said later, when Shannon Stevenson, the lawyer for Colorado, defended the ruling. It would be odd for it to be interpreted to allow every state to go its own way, Kagan said.
Justice Ketanji Brown Jackson, like Kagan, among the three Democratic appointees on the court, similarly questioned the authority of states to make their own decisions on eligibility.
Why would the writers of the 14th Amendment “design a system” that would allow “different states suddenly to say, ‘You’re eligible, you’re not?’” she asked.
Chief Justice John G. Roberts Jr. said that allowing a state-by-state approach inevitably would invite a court in a conservative state to rule that President Biden was ineligible.
“Surely there will be disqualification proceedings on the other side,” he said. “I would expect … a goodly number of states will say, whoever the Democratic candidate is, ‘You’re off the ballot.’”
Must Congress pass a law?
Justice Brett M. Kavanaugh pointed to a decision from 1869, the year after the 14th Amendment was ratified. Chief Justice Salmon P. Chase ruled that the disqualification of insurrectionists could not be used unless Congress passed specific legislation to implement it.
Chase issued that ruling, in what is known as Griffin’s case, in his role as an appeals court judge “riding the circuit,” as justices did in the 19th century. So it isn’t a binding Supreme Court precedent. But, as Kavanaugh noted, it is a guide to what at least some figures at the time believed the 14th Amendment to mean. The fact that Congress the following year passed a law to set up the sort of process Chase called for is further evidence, he said.
That 1870 law was repealed long ago, and there’s almost no chance the current, gridlocked Congress would pass implementing legislation now. So a ruling on those grounds would effectively end the case.
One risk would remain for Trump: There is still a law against insurrection on the books, and it provides that a person who is convicted is barred from office. But Trump has not been charged under that law.
A Trump exception?
For Trump’s lawyer, Jonathan Mitchell, a ruling on those grounds would be a partial victory, but the former president might risk future challenges.
The issue of whether Trump was qualified “could come back with a vengeance” after the election, warned Murray, the lawyer challenging him.
“Ultimately, members of Congress may have to make the determination after a presidential election, if President Trump wins, about whether or not he’s disqualified from office and whether to count votes cast for him,” Murray said.
To end the case once and for all, Mitchell urged the court to rule that Trump was never an “officer of the United States” and therefore is exempt from the 14th Amendment’s ban.
Mitchell insisted that those words have a specific, technical meaning in the Constitution: “‘Officer of the United States’ refers only to appointed officials,” not to elected officials like the president, he told the justices.
Some prominent legal scholars have scoffed at that, saying the Constitution should be read as a normal person would read it, not as a “secret code,” as one recent law review article put it.
Mitchell’s argument also ran into objections from some justices.
As Sotomayor noted, the argument feels like “a bit of a gerrymandered rule” because it would benefit only Trump: Alone among presidents, he was never an appointed federal official, a member of Congress or a state official before his election.
“It does seem odd that President Trump falls through the cracks, in a way,” Mitchell conceded. But, he insisted, that’s what the language of the amendment requires.
Is the presidency covered?
Jackson raised a related question: Is the presidency one of the offices the amendment bars an insurrectionist from holding?
The opening words of Section 3 list the specific offices from which an insurrectionist would be barred, she noted. It includes senator, representative and member of the electoral college but never mentions the president. Perhaps that was deliberate, because the writers of the 14th Amendment were mostly focused on preventing “the South from rising again” by keeping former Confederates out of Congress and state offices, she said.
At minimum, the language has “ambiguity,” she said. The court could interpret that ambiguous language to allow voters to make their own decisions.
Is it too early?
Mitchell pressed one other argument that appeared to interest some justices: The amendment says insurrectionists cannot “hold any office” but doesn’t say they can’t run for one.
That’s important, because Congress could vote before Inauguration Day to lift the disqualification. By barring Trump from the ballot, Colorado would, in effect, preempt his right to ask Congress for amnesty, he said.
When the justices convene Friday to discuss the case behind closed doors, they’ll see whether they can consolidate behind one of those arguments. They’re under pressure to act quickly, because the presidential campaign is well underway. If they can produce a unanimous ruling, it might lower the partisan temperature of an inflamed election year.
Politics
Trump has Christmas message to 'Radical Left Lunatics,' tells inmates Biden granted clemency to 'GO TO HELL!'
President-elect Trump dished out a fiery Christmas message on Wednesday in which he wished a “Merry Christmas” to “Radical Left Lunatics,” told the 37 prisoners whose death row sentences were recently commuted by President Biden to “GO TO HELL!,” and more.
“Merry Christmas to the Radical Left Lunatics, who are constantly trying to obstruct our Court System and our Elections, and are always going after the Great Citizens and Patriots of the United States but, in particular, their Political Opponent, ME. They know that their only chance of survival is getting pardons from a man who has absolutely no idea what he is doing,” Trump declared on Truth Social.
“Also, to the 37 most violent criminals, who killed, raped, and plundered like virtually no one before them, but were just given, incredibly, a pardon by Sleepy Joe Biden. I refuse to wish a Merry Christmas to those lucky “souls” but, instead, will say, GO TO HELL! We had the Greatest Election in the History of our Country, a bright light is now shining over the U.S.A. and, in 26 days, we will, MAKE AMERICA GREAT AGAIN. MERRY CHRISTMAS!” he added.
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President-elect Donald Trump smiles during Turning Point USA’s AmericaFest at the Phoenix Convention Center on Dec. 22, 2024 in Phoenix, Ariz. (Rebecca Noble/Getty Images)
Biden recently announced that he commuted the sentences of 37 prisoners on federal death row to life sentences without the potential for parole.
“Make no mistake: I condemn these murderers, grieve for the victims of their despicable acts, and ache for all the families who have suffered unimaginable and irreparable loss,” the president said in a statement, but noted that he is “more convinced than ever that we must stop the use of the death penalty at the federal level.”
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President Joe Biden speaks at the US Department of Labor in Washington, D.C., on Monday, Dec. 16, 2024. (Samuel Corum/Sipa/Bloomberg via Getty Images)
In a separate post, Trump declared, “Merry Christmas to all, including to the wonderful soldiers of China, who are lovingly, but illegally, operating the Panama Canal (where we lost 38,000 people in its building 110 years ago), always making certain that the United States puts in Billions of Dollars in ‘repair’ money, but will have absolutely nothing to say about ‘anything.’
He also discussed Canada, referring to Prime Minister Justin Trudeau as the “Governor” of America’s northern neighbor, while suggesting that Canadian businesses would boom if the nation became a U.S. state.
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Justin Trudeuau, prime minister of Canada, and Joe Biden, president of the United States, talk as part of the G20 Summit Rio de Janeiro 2024 at Museu de Arte Moderna on Nov. 19, 2024 in Rio de Janeiro, Brazil. (Wagner Meier/Getty Images)
“Also, to Governor Justin Trudeau of Canada, whose Citizens’ Taxes are far too high, but if Canada was to become our 51st State, their Taxes would be cut by more than 60%, their businesses would immediately double in size, and they would be militarily protected like no other Country anywhere in the World. Likewise, to the people of Greenland, which is needed by the United States for National Security purposes and, who want the U.S. to be there, and we will!” Trump declared.
With Donald Trump set to return to the White House next year, there’s much speculation on how his second administration will affect press freedom. The short answer is that we don’t know, but prognosticators do have the benefit of an important dataset: his first term.
And, if that record is any indication, national security “leaks” to the press may be an area of tension between journalists and the new leadership at the Justice Department. If there is a chilling effect on sources coming forward with newsworthy information in the public interest, Americans will be less informed and the American government will be held less accountable.
Things have been quiet on that front for the last four years, but the first Trump administration inherited and expanded the Obama administration’s aggressive pursuit of sources who disclosed government secrets to the press.
And President-elect Trump has often decried national security leaks and called for aggressively investigating and prosecuting them.
It would be foolish for press advocates to discount the possibility of a repeat of his first term, and perhaps an escalation.
There are several federal laws that can be read to criminalize the public disclosure of national security secrets. The most prominent is the Espionage Act of 1917, a World War I-era law that was initially used against domestic opponents of the war but applies to the act of communicating, delivering or transmitting “information relating to the national defense,” a broad term, to anyone not entitled to receive it.
In other words, if someone were to anonymously slip a manila envelope under a reporter’s door with government secrets — even secrets that the public has a clear interest in knowing, such as the warrantless domestic wiretapping by the George W. Bush administration — the Justice Department has consistently claimed the authority to investigate and prosecute the source, as well as the journalist, under the Espionage Act. There is no “public interest” defense.
Historically, it hasn’t been used that way. For about 90 years, the Espionage Act was deployed against actual spies, not journalists’ sources. There are a few exceptions — most prominently the Pentagon Papers case, in which the government launched a failed prosecution against Daniel Ellsberg and Anthony Russo — but source cases are in the single digits. And, while there were investigations involving journalists, no reporter or news outlet was ultimately prosecuted under the Espionage Act in that period.
The reason is simple. When the reporting is in the public interest, taking the leaker or journalist to court would be a “political firestorm,” as a federal appeals court judge put it in one of those few exceptions, a 1980s case involving a leak of classified photographs.
But the Bush and Obama administrations marked a shift in practice.
Under President George W. Bush, the Justice Department brought the first Espionage Act case other than Russo against individuals outside government, who had not sworn to protect government secrets. The Bush administration also featured the Valerie Plame case, which started as a leak investigation, in which Judith Miller of the New York Times spent 85 days in jail for refusing to identify a confidential source from her reporting about the run-up to the Iraq war. And the Bush Justice Department issued a subpoena in 2008 to force the New York Times’ James Risen to identify his source in another leak case, which the Obama administration pursued until 2015.
Then the Obama administration started to bring Espionage Act prosecutions against journalists’ sources in earnest. Depending on how you count, his administration brought 10 such cases. That is more than all other presidents combined.
Trump’s first term followed that trend. The Justice Department brought eight cases against journalist sources, including two under bank secrecy laws, as well as the Julian Assange case. The Assange case is complicated, but he was charged in part under the novel and dangerous legal theory that publishing secrets is a crime.
These cases can involve secret government demands for reporters’ notes; phone, email and text records; and correspondence with sources. That kind of snooping can reveal the constellation of a journalist’s sources beyond just the investigation in question and can give the government visibility into other stories the newsroom is investigating, including stories about the government. As Miller said when facing jail time: “If journalists cannot be trusted to keep confidences, then journalists cannot function and there cannot be a free press.”
The Justice Department during Trump’s first term turbocharged Obama-era approaches. In addition to seizing years of records from reporter Ali Watkins’ phone and email providers, a Customs and Border Protection agent threatened to reveal private information unless she identified her sources. Watkins was a reporter at Politico at the time of the questioning and was at the New York Times when she learned of the records seizure.
Then, in the early days of the Biden administration, we learned that the Justice Department in the last days of the Trump administration had authorized demands for phone and email records for eight reporters at CNN, the New York Times and the Washington Post in three separate leak investigations. It did so without notifying those outlets in advance — to give them a chance to negotiate or challenge the demands — and the CNN and New York Times demands came with a gag order preventing newsroom lawyers from even alerting the reporters that they had been targeted.
The history of leak investigations under Presidents Bush, Obama and Trump shows that the threat to the free flow of information is bipartisan and spans administrations. President Biden’s term has been a notable exception, but a reprise may be coming.
Gabe Rottman is the policy director of the Reporters Committee for Freedom of the Press.
President-elect Trump picked Miami-Dade County Commissioner Kevin Marino Cabrera to serve as ambassador to Panama.
Calling the Miami-Dade County Commissioner a “fierce fighter,” Trump said that he would advance the “MAGA agenda” to the Central American country.
“Kevin is a fierce fighter for America First principles. As a Miami-Dade County Commissioner, and Vice Chairman of the International Trade Consortium, he has been instrumental in driving Economic growth, and fostering International partnerships,” Trump wrote in the Wednesday announcement. “In 2020, Kevin did an incredible job as my Florida State Director and, this year, advanced our MAGA Agenda as a Member of the RNC Platform Committee.”
“Few understand Latin American politics as well as Kevin – He will do a FANTASTIC job representing our Nation’s interests in Panama!” he said.
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Miami-Dade County Commissioner Kevin Marino Cabrera celebrates at Beat Culture Brewery in Miami after defeating Coral Gables Commissioner Jorge Fors on Nov. 8, 2022. (Al Diaz/Miami Herald/Tribune News Service via Getty Images)
The announcement came after Trump said that Panama was “a Country that is ripping us off on the Panama Canal, far beyond their wildest dreams.”
In a post on Truth Social on Wednesday, Trump also accused Chinese soldiers of illegally operating the canal and “always making certain that the United States puts in Billions of Dollars in ‘repair’ money but will have absolutely nothing to say about ‘anything.’”
President-elect Trump on Wednesday nominated Miami-Dade County Commissioner Kevin Marino Cabrera to serve as ambassador to Panama. (Kevin Dietsch/Getty Images)
In a statement on X, Cabrera thanked Trump for the nomination.
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“I’m humbled and honored by your nomination to serve as the U.S. Ambassador to Panama,” he wrote. “Let’s get to work!”
President-elect Trump was honored on Tuesday with a street renamed after him in Miami-Dade County, Florida. (X/@KMCabreraFL)
Cabrera won his county election two years ago following an endorsement by Trump.
He also served as the Florida state director for Trump’s 2020 campaign and was a member of the RNC Platform Committee.
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