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CNN Live Event/Special
Supreme Court Hears Arguments in Trump Ballot Case. Aired 10:30-11a ET
Aired February 08, 2024 - 10:30 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
SONIA SOTOMAYOR, U.S. SUPREME COURT JUSTICE: There are other presidential qualifications in the constitution. Age --
JONATHAN MITCHELL, ATTORNEY REPRESENTING DONALD TRUMP: Yes.
SOTOMAYOR: -- citizenship. There's a separate amendment, the 22nd amendment, that doesn't permit anyone to run for a second term. We have a history of states disqualifying, not all, but some, of disqualifying candidates who won't be of age if elected. We have a history of at least one state disqualifying someone who wasn't a U.S. citizen.
SOTOMAYOR: Is -- are your arguments limited to Section 3?
MITCHELL: Not quite. The question, Justice Sotomayor, is whether the state is violating term limits by adding to or altering the extant qualifications for the presidency and the constitution. Now, the High Court --
SOTOMAYOR: So, you want us to say -- I'm wondering why the term limits qualification is important to you.
MITCHELL: Because I --
SOTOMAYOR: Are you setting up so that if some president runs for a third term, that a state can't disqualify him from the ballot?
MITCHELL: Of course, a state can disqualify him from the ballot because that is a qualification that is categorical. It's not defeasible by Congress. So, a state is enforcing the constitution when it says, you can't appear on our ballot if you've already served two terms as President. The same as though --
SOTOMAYOR: The same if they're underage when elected, and the same if they're not a U.S. citizen.
MITCHELL: The same if they're not -- well, the same if they're not a U.S. citizen for sure. The age is a little more nuanced because you can imagine a scenario where the person is 34 years old at the time of the election, but he turns 35 before inauguration. A state cannot -- SOTOMAYOR: Well, then that would come up -- that would probably come
up to us at some point. The state would make a decision and say he's ineligible and we would have to decide that question then. But my point is, so what adding qualifications to what term limit --
MITCHELL: Your --
SOTOMAYOR: -- is your argument based on.
MITCHELL: Your changing --
SOTOMAYOR: I'm just confused.
MITCHELL: OK. With respect to the -- maybe I'll start with the age example.
MITCHELL: If a state like Colorado says, you can't appear on our presidential ballot unless you are 35 years old on the day of the election. That would be a violation of term limits because there could be a 34-year-old on the day of the election who turns 35 before inauguration day.
What Colorado has done here, what their Supreme Court has done is similar, because under Section 3, President Trump needs to qualify during the time that he would hold office. And the Colorado Supreme Court is saying to President Trump, you have to show that you would qualify under Section 3 now, at the time of the election, or at the time that we, the state Supreme Court --
SOTOMAYOR: Now I understand.
MITCHELL: So, what --
JOHN ROBERTS, U.S. SUPREME COURT CHIEF JUSTICE: I just -- point of clarification so we're all on the same page. When you say term limits, you mean our decision in the term limits case?
MITCHELL: Yes, I'm sorry.
ROBERTS: The constitutional provision governing term limits?
MITCHELL: Yes, U.S. term limits against Thornton. Maybe I should call it Thornton instead of term limits, I'm sorry.
ROBERTS: That would be easier for me to understand.
KETANJI BROWN JACKSON, U.S. SUPREME COURT JUSTICE: And does it have --
ROBERTS: I was confused.
JACKSON: So, does it have something to do with the fact that the particular circumstance that you're talking about can change? Is that what you mean? I'm trying to understand -- MITCHELL: Yes.
JACKSON: -- the distinction between the provision in the constitution that relates to disqualification on the basis of insurrection behavior, and these other provisions that Justice Sotomayor points out. They all seem to me to be extant constitutional requirements. So, you -- but you're drawing a distinction.
MITCHELL: Right. I'm drawing a distinction because some of them are categorical. Such as --
JACKSON: What do you mean by categorical? Whether or not you are an insurrectionist is or is not categorical?
MITCHELL: It is not categorical because --
MITCHELL: -- because Congress can lift the disability by a two-thirds vote. And there's --
JACKSON: But why does that change the initial determination of 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 determination?
MITCHELL: Because we don't know whether President Trump will be excused before he's sworn in if he wins the election on January 20, 2025. And a court that is saying that President Trump has to show now, today, that he would qualify under Section 3 is accelerating the deadline that the constitution provides for him to obtain a waiver from Congress.
JACKSON: But that's by virtue of the hold, right? Hold office. This is --
MITCHELL: Correct. Yes, Section 3 bans him only from holding office. It does not --
JACKSON: All right. Can I ask you -- I'm just -- now that I have the floor.
JACKSON: Can I ask you to address your first argument which is the office -- officer point?
ELENA KAGAN, U.S. ASSOCIATE SUPREME COURT JUSTICE: Could --
JACKSON: Oh, sorry.
ROBERTS: Yes, why don't we --
KAGAN: Could we --
JACKSON: Oh. KAGAN: Is that OK if we do this and then we go to that?
JACKSON: Sure, sure, sure. Go ahead.
KAGAN: Will there be an opportunity to do officer stuff or should we --
MITCHELL: Absolutely. Absolutely.
KAGAN: I just want to understand, so on this theory, what is the sum total of ways that the -- that Section 3 can be enforced? That somebody out there can say, yes, there's been a former president who engaged or led or participated in an insurrection, and so should be disqualified from office, putting aside the officer argument.
KAGAN: What is the sum total of ways that that enforcement can happen?
MITCHELL: So, the answer to that question is going to depend on what Your Honor thinks of Griffin's case. So, if this court were to affirm the rationale of Griffin's case, then the only way Section 3 could be enforced is through congressional legislation that creates a remedy. So, Congress could reinstate the quo warranto provisions that they initially had in the 1870 --
KAGAN: Is that your position?
MITCHELL: Yes, because we believe Griffin's case is correctly decided and should be followed.
KAGAN: And how does that fit with a lot of the answers to the questions that we've been given? You said, well. Congress has to have the ability by a two-thirds vote to lift the disqualification.
KAGAN: But so too -- I would think that that provision would be in some tension with what you just said.
MITCHELL: There is -- yes.
KAGAN: Because if Congress has the ability to lift the vote by a two- thirds majority, then surely it can't be right that one House of Congress can do the exact same thing by a simple majority.
MITCHELL: Yes, there certainly is some tension, Justice Kagan, and some commentators have pointed this out. Professor Bode and Professor Paulson criticized Griffin's case --
KAGAN: Then I must be right.
MITCHELL: -- very sharply. Well -- we don't think it's -- we don't think this problem is fatal. Because, to us this -- the two-thirds provision that allows Congress to lift as its ability is something akin to a pardon power. Where Congress, through enforcement legislation, creates a mechanism by which the insurrectionist issue is to be determined by some entity. It could be the legislature, in the case of an elected member of Congress. Each house has the ability to judge the qualifications of their members, or if it's outside the situation of Congress, it would be whatever Congress enacts.
So, when it was the writs of quo warranto, each federal prosecutor had the authority to bring a quo warranto writ against an incumbent official and seek his ouster from office under Section 3, but it was still subject to that amnesty provision in Section 3 of the 14th Amendment.
So, we do acknowledge the tension, but we don't think that's an insurmountable obstacle --
SAMUEL ALITO, U.S. ASSOCIATE SUPREME COURT JUSTICE: I don't think you can see why there's a tension. If you analogize the lifting by Congress of the disqualification by a two-thirds vote to a pardon, then surely one would not argue that the fact that the president or a governor can pardon someone from a criminal conviction or a criminal offense means that the person couldn't be prosecuted in the first place for the criminal offense.
MITCHELL: That's right.
ALITO: So, I don't see what the tension is. They're two separate things.
ALITO: Did the person engage in this activity, which is prohibited? And second even if the person did engage in the activity, are there reasons why the disqualification or the -- should be lifted or the pardon should be granted?
MITCHELL: That's right. I mean, if -- again, if the court accepts the holding of Griffin's case, that's exactly the regime that we would have.
ALITO: Yes, I don't see there's --
ALITO: But also, there's a limit on what one can infer from the mere fact that Congress can lift the disqualification. You can't infer from that, that it is impermissible to have a prior determination that the person did engage in the insurrection. You can't make that inference. It's not logical.
MITCHELL: OK. KAGAN: But I think --
JACKSON: And yet, isn't that what you're doing?
KAGAN: Let's -- what's intention is that you would have the exact same actor and say, look, that actor can lift the disqualification by a two-thirds vote. But you're saying only that actor can put the disqualification into effect in the first place, and it can do that by far less than two thirds. It can do that just by a simple majority of one house.
MITCHELL: Or it could do that by doing nothing at all if the holding of Griffin's case is correct, because just Congressional inaction --
KAGAN: Yes, exactly.
MITCHELL: -- would effectively act as a --
KAGAN: But that means that there will be -- the only thing it takes to have no action --
KAGAN: -- is, you know -- is, you know, half plus one saying we don't feel like it.
MITCHELL: But that's why we tried to characterize our Griffin's case argument the way we did, where we rely on preemption doctrines as well. So, we have --
BRETT KAVANAUGH, U.S. ASSOCIATE SUPREME COURT JUSTICE: Well, don't --
ALITO: Why don't we --
KAVANAUGH: -- don't you think Griffin's case is also relevant to trying to figure out what the original public meaning of Section 3 of the 14th Amendment is? It's by the Chief Justice of the United States a year after the 14th Amendment?
KAVANAUGH: That seems to me highly probative of what the meaning or understanding of that language, otherwise, elusive language is?
MITCHELL: I do think it's probative, Justice Kavanaugh. We didn't rely too heavily on the point that you're making partly because we have this other opinion from Justice Chase in the Jefferson Davis case. So, that argument could potentially boomerang on us, which is why we didn't push it very hard in our briefing. But I think, Your Honor, is right. This is --
KAVANAUGH: I -- why don't you finish your sentence and then we'll move on --
MITCHELL: It is relevant and probative for sure. But I think there is other evidence too that might, perhaps, undercut the usefulness of trying to characterize Griffin's case is completely emblematic of the original understanding.
ROBERTS: Now, why don't we move on to the officer point?
ROBERTS: And Justice Jackson, I think you --
JACKSON: Yes. So, I had a question about it because you're making a textualist argument. And as I look at section 3, I see two parts of the first sentence of Section 3.
The first is a list of offices that a disqualified person is barred from holding. And the second are specific circumstances that give rise to disqualification. So, first, am I right about seeing that there are two different things happening in the first sentence --
MITCHELL: For sure.
JACKSON: So, are you arguing both in this case or just one? Are you arguing both that the office of the presidency should not be considered one of the barred offices? And that the person -- a person who previously took the presidential oath is not subject to disqualification?
MITCHELL: We are arguing both, Your Honor.
JACKSON: I don't see that in your brief. I see a lot of --
MITCHELL: Well --
JACKSON: -- focus on the second, but not on the first.
MITCHELL: There is definitely more focus on the second and we acknowledge that we have a somewhat heavier lift on the first point.
JACKSON: Why? It seems to me that you have a list and president is not on it.
MITCHELL: That's certainly an argument in our favor, but they're also -- with respect to officer of the United States, that's used repeatedly in the constitution, in the Commission's Clause, in the Appointment's Clause, and also in the Impeachment Clause. And every time it appears, it's used in a way that clearly excludes the president. So, we don't --
JACKSON: No, I understand, but that's the second argument.
MITCHELL: That is.
JACKSON: So, the first argument is we have a list of offices -- MITCHELL: Yes.
JACKSON: -- that a person is barred from holding, right?
JACKSON: Under your theory or under the language of -- and we see it begins with Senator, Representative, elector of president and vice president, and all other civil or military officers -- offices.
MITCHELL: Offices under the United States.
JACKSON: Offices under the United States.
MITCHELL: How it's phrased.
JACKSON: But the word president or vice president does not into peer (ph) -- not appear, specifically --
MITCHELL: That's right.
JACKSON: -- in that list. So, I guess I'm trying to understand, are you giving up that argument?
JACKSON: And if so, why?
MITCHELL: No, we're not giving it up at all. You're right. The president and the vice president are not specifically listed. But the Anderson litigants claim that they are encompassed within the meaning of the phrase office under the United States. And that's --
JACKSON: And do you agree that the framers would have put such a high and significant and important office, sort of, smuggled it in through that catch all phrase?
MITCHELL: No, we don't agree at all that's why we're still making the argument that the President C is excluded from the covered offices that are listed at the beginning of Section 3.
SOTOMAYOR: I'm sorry, your brief says you didn't take a position on that point.
MITCHELL: I'm sorry.
SOTOMAYOR: And your brief said -- I don't have the site, I apologize. You don't affirmatively argue that point, I think is what your brief said.
MITCHELL: In the blue brief?
MITCHELL: Well, we certainly argued it in the reply brief and I'll have to look at what we -- how we phrased it, but we did point out in our opening brief that there are potential issues if this court were to rule on office under, because that phrase appears in other parts of the Constitution, including the Emoluments Clause, the Impeachment Disqualification Clause --
JACKSON: Would we necessarily have to say -- I mean, I thought the point was that Section 3 was unique? That there was something happening with Section 3 that could explain why certain offices were left off or whatnot?
MITCHELL: Perhaps, but there are also implications from other parts of the Constitution which really help us on the officer of the United States argument in that second part of Section 3, but somewhat cut against us when it comes to office under the United States. And the Anderson litigants point this out in footnote nine in the red brief, where they say if this court were to say that President C is an excluded office under the United States, that could imply, for example, the President is not covered by the emoluments --
NEIL GORSUCH, U.S. ASSOCIATE SUPREME COURT JUSTICE: Mr. Mitchell --
GORSUCH: Stepping back on this.
GORSUCH: A lot hinges on the difference between -- in your argument, between the term office and officer.
GORSUCH: And I guess I'm wondering what theory do you have from an original understanding or a textualist perspective, why those two terms so closely related would carry such different weight?
MITCHELL: Because it's clear from the constitutional text that there are officers that do not hold offices under the United States. For example, the Speaker of the House and the president pro tempore. They're described as officers in Article I who are chosen by the legislature. They also have to be officers if they're able to be covered by the Presidential Succession Act, because under the constitution, only officers can serve when there's a vacancy in both the presidency and the vice presidency.
So, they're officers but they're not offices under the United States because of the Incompatibility Clause which says that if you're a member of Congress, you cannot simultaneously hold an office under the United States. So, that provision of the constitution clearly demonstrates that members of Congress can't hold offices.
GORSUCH: I appreciate that response. Is there anything in the original drafting history discussion that you think illuminates why that distinction would carry such profound weight?
MITCHELL: Not of which we're aware. So, these are textual inferences that we're drawing from constitutional structure, intratextualist (ph) analysis.
MITCHELL: But we aren't relying necessarily on the thought processes of the people who drafted these provisions because they're unknowable. But even if they were knowable, we're not sure they would be relevant in any event because this language, especially in Section 3, was enacted as a compromise.
There were certainly radical Republicans who wanted to go much further. If you look at some of the earlier drafts that were proposed, some people wanted to ban all insurrectionists from holding office, regardless of whether they previously swore an oath. Some people wanted to go further and ban them even from voting.
ROBERTS: Thank you.
MITCHELL: And --
ROBERTS: Thank you, Counsel. I just have one very technical question. The statute in 1870, if it were still in effect would require you to modify your arguments slightly. It was repealed, as you say, in 1948. Do -- I tried to find it, but I couldn't. Do you know why it was repealed?
MITCHELL: No, we don't know why. It looks like it was done as part of a reorganization of the U.S. Code. So, it doesn't appear there was any policy motivation behind that decision. I think a lot of things got repealed during this 1948 decisions that were made.
ROBERTS: OK. Justice Thomas, anything further? Justice Alito?
ALITO: Is there any history of states using Section 3 as a way to bar federal office holders?
MITCHELL: Not that I'm aware of, Justice Alito, because of Griffin's case. Griffin's case has been the law -- I shouldn't say that it's been the law because it was just a circuit court decision, but that has been the settled understanding of Section 3 since 1870 when it was decided.
ALITO: Thank you. Justice Sotomayor?
SOTOMAYOR: I just want to pin down your principal argument on Section 3. You argue that even though the president may or may not qualify -- presidency may or may not qualify as an office under the United States. Your principal argument is that the president is not an officer of the United States, correct?
MITCHELL: Yes, I would say it a little more forcefully than what, Your Honor, just described. We believe the presidency is excluded from office under the United States. But the argument we have that he's excluded, the president, as an officer of the United States is the stronger of the two textually and has fewer implications for other constitutions.
SOTOMAYOR: A bit of a gerrymandered rule, isn't it designed to benefit only your client?
MITCHELL: I certainly wouldn't call it gerrymandered. That implies nefarious intent but just --
SOTOMAYOR: Well, that -- you didn't make it up. I know some scholars have been discussing it. But just so we're clear, under that reading, only the petitioner is disqualified because virtually every other president, except Washington, has taken an oath of -- to support the Constitution, correct?
MITCHELL: That's right. Every president, to our knowledge, every other president. John Adams might also be excluded because he took the oath as a vice president which is not an officer. But yes, President Biden would certainly be covered. He took the oath as a member of Congress, and that's true of every previous president.
SOTOMAYOR: Would that be true if we were to hold more narrowly in a reversal that it's not Section 3 that's at issue, but Thornton and others as to whether Section 3 can be enforced by states against the president?
MITCHELL: That would extend to every presidential candidate, not just our client, that's correct.
SOTOMAYOR: Exactly, not just yours.
SOTOMAYOR: OK. Thank you.
ALITO: Justice Kagan?
KAGAN: And if I could just understand, I mean, given that you say you don't have a lot of evidence that the founding gen -- the generation that we're looking at is really thinking about office versus officer of the United States. I mean, it would suggest that we should ask what -- is that a rule a sensible one, you know, if they had thought about it? What reason would they have given for that rule? And it does seem as though there -- there's no particular reason. And you can think of lots of reasons for the contrary --
KAGAN: -- to say that the only people who have engaged in insurrection who are not disqualified from office are presidents who have not held high office before. Why would that rule exist?
MITCHELL: I don't think there is a good rationale given that this was compromised legislation. And sometimes this happens with statutory compromises and even constitutional compromises. There's an agreed upon set of words that can pass both Houses of Congress. But different legislators may have had goals and motivations, they didn't all get their way in a compromise, everyone goes away miserable. But this was the text that was settled upon. And it does seem odd that President Trump would fall through the cracks in a sense.
But if officer of the United States means appointed officials, there's just no way he can be covered under Section 3. The court would have to reject our officer argument to get to that point.
KAGAN: And is there any better reason if he -- go to the office argument that Justice Jackson was suggesting, is there any better reason for saying that an insurrectionist cannot hold the whole panoply of offices in the United States, but we're perfectly fine with that insurrectionist being president?
MITCHELL: I think that's an even tougher argument for us to make, as a policy matter because one would think, of all offices, the presidency would be the one you would want to keep out, the confederate insurrectionist. That's the commander in chief of the army. So, again, that's why we're leaning more on the officer of argument than the office under. We're not conceding office under, but we definitely have the stronger textual case and structural case on officer of the United States.
KAGAN: Thank you.
ALITO: Justice Gorsuch?
GORSUCH: I just want to respond to some of the specific textual arguments on the officer of with respect to the Appointments Clause, the Impeachment Clause, and some of the others.
MITCHELL: Yes, so the way -- let's start with -- well, I'll start with the Commission's Clause.
GORSUCH: The ball has been bouncing on that back and forth, and I wanted to see where you landed today.
MITCHELL: There are three different textual inferences that can be drawn from each of those provisions, Your Honor, just mentioned. But the Commission's Clause, I think, is the strongest because it says the president shall, you know, commission all the officers of the United States. Shall is mandatory. All is all encompassing. And the president doesn't commission himself and he can't commission himself. So, that's one of the first problems.
I think the Anderson litigants are trying to say, you know, there's somehow an implied exception there because the President, obviously, can't commission himself, so we should construe that to mean all officers of the United States besides the President. But you also have members of Congress who are not commissioned by the President, and that's because they're not officers of the United States.
So, the only sensible distinction that we can see, given the language of the Commission's Clause, is that officers of the United States are appointed officials, and elected officials, such as members of Congress, and the president, and the vice president are not. And the Impeachment Clause reinforces that the president, the vice president, and all civil officers of the United States shall be removed from office upon impeachment for and conviction of hall high crimes and misdemeanors. The president and the vice president are listed separately from officers of the United States.
And then of course, the Appointments Clause, we know the president is not appointed pursuant to Article II, neither is the vice president, neither are members of Congress. So, they can't be officers either.
GORSUCH: And how does Article I Section 6 fit into this discussion?
MITCHELL: And this is about officers being in the line of succession?
GORSUCH: Yes, exactly.
MITCHELL: Right, so you have to be an officer to be in the line of succession. We have a federal statute that puts the speaker and the president pro tempore in the line of succession. They are officers, but they're not officers of the United States because they're not subject to impeachment, they're not commissioned by the President, and they're not appointed pursuant to Article II.
So, there is this gap between the term officer and the phrase officers of the United States, reinforcing the idea that officers of the United States is a term of art that doesn't refer just to federal office holders, which is what the Anderson litigants are claiming, but refers only to those who are appointed, not to those who are elected.
GORSUCH: Thank you.
ALITO: Justice Kavanaugh.
KAVANAUGH: I just -- make sure I understand how you're using Griffin's case again. Section 3 refers to insurrection and raises questions about who decides what processes are to be used. That's ratified in 1868. The next year, Chief Justice Chase opines that states do not have the authority, that only Congress has the authority to enforce that. That could be evidence, as you say, of the original public meeting, at least some evidence. It's a precedent, although not binding. But your point then is it's reinforced because Congress itself relies on that precedent in the Enforcement Act of 1870 and forms the backdrop against which Congress does legislate.
And then as Justice Alito says, the historical practice for 155 years has been that that's the way it's gone. There hasn't -- there haven't been state attempts to enforce disqualification under Section 3 against federal officers in the years since. So, whether that's a Federalist 37 liquidation argument, it all reinforces what happened back in 1868, 1869, and 1870.
KAVANAUGH: Do you want to add to that? Alter that?
MITCHELL: No, I think that's exactly right. And the last part you mentioned, Your Honor, is crucial to our argument, that Congress relied on Griffin's case. It provided the backdrop against which they legislated, which is why we should read these extant enforcement mechanisms. And right now, the only one left is the federal insurrection statute, 2383, as exclusive of state court remedies.
It's an -- it's a form of implied preemption, almost C clamor's implicit preemption of other remedies because Congress made these decisions in explicit, reliance on Griffin's case.
KAVANAUGH: And if we agree with you on Griffin's case and what you've elaborated on there, that's the end of the case, right?
MITCHELL: It should be, yes. Unless Congress decides to enact a statute, which we can't allow --
KAVANAUGH: A new statute in addition to 2383. And just to be clear, under 2383, you agree that someone could be prosecuted for insurrection by federal prosecutors. And if convicted, could be or shall be disqualified then from office.
MITCHELL: Yes, but the only caveat that I would add is that our client is arguing that he has presidential immunity, so we would not concede that he can be prosecuted for what he did on January 6th under 2383.
KAVANAUGH: Understood. Asking a question about the theory of 2383. Thank you.
MITCHELL: Thank you.
ALITO: Justice Barrett?
AMY CONEY BARRETT, U.S. ASSOCIATE SUPREME COURT JUSTICE: So, Griffin's case was a collateral proceeding, so it's habeas relief.
BARRETT: Could Griffin have -- so, even if Section 3 is not a basis for collateral relief in habeas, which was new at the time, could Griffin have raised at his trial or in direct appeal the argument that Sheffy -- Judge Sheffy, you know, you can't legitimately sit or constitutionally sit on my case because you're an insurrectionist and you're disqualified. Could he have won then?
MITCHELL: No, not if --
MITCHELL: -- not if Griffin's case is correct. So, a court would have to reject the rationale of Griffin's case to accept what Your Honor is suggesting.
BARRETT: Well, why? Like I said, Griffin's case -- I mean, I think there's some language that might be a little bit broad, but at bottom, Griffin's case is about a collateral habeas proceeding. And Griffin had brought his case after the fact. He needed a cause of action. Why wouldn't it work in a trial for him to challenge Sheffy's constitutional ability to adjudicate his case?
MITCHELL: What Griffin's case holds is that only Congress can provide the means of enforcing Section 3. And under Your Honor's hypothetical, Congress has not enacted any such statute that would give Mr. Griffin the right to raise those types of arguments at his trial. So, he would have to await legislation from Congress.
BARRETT: OK. Let's assume that I disagree with you about the officer argument. So, Section 3 covers President Trump. Let's say that Congress enacts a quo warranto provision that would allow a state or -- I guess it doesn't really matter for this purpose, even a federal prosecutor, to bring such an action against him. To remove him from office in the Quo Warranto way. Wouldn't that be in some tension with impeachment?
He would be extracted from office outside of the process of impeachment. Couldn't then President Trump simply say, well the only way to get me out of office is the impeachment process and not this quo warranto action?
MITCHELL: So, I don't know how that would play out because the quo warranto actions that were brought, that I'm aware of under, under the 1870 Enforcement Act were brought against state officials. And Your Honor's impeachment hypothetical would apply not only to the President, but any federal officer of the --
BARRETT: I know.
MITCHELL: -- of the United States.
BARRETT: I know.
MITCHELL: So, I don't know how that played out in the courts and whether anyone ever tried to argue that impeachment was the exclusive remedy for --
BARRETT: Well, I don't think anybody did argue it. I guess what I'm asking is, you know, you said it's Congress's exclusive province (ph).
BARRETT: And you also said that it has to apply, you know, after one is holding office is elected. And I'm asking whether then the implication of your argument is that Congress could not enact such a provision that applied against federal office holders that were covered by Section 3 as opposed to state ones.
MITCHELL: I believe they could. In the Impeachment Clause says that the President, the Vice President, and all civil officers of the United States shall be removed from office upon impeachment and conviction. But it doesn't say that's the only way you can remove them. I mean, Congress can defund a position, and effectively it's not quite the same as formal removal. But the other relevant precedent is Stuart against Laird when the Jeffersonians repealed the Midnight Judges Act and abolished all of these positions for federal judges.
And some people thought that was unconstitutional because they thought the only way you could eliminate federal judges was through impeachment. But Chief Justice Marshall upheld that statute. So, that to me is a relevant precedent showing that impeachment is not the only way to get rid of a federal official.
BARRETT: OK. Let me just ask one question, and this is just a point of clarification. Does President Trump have any kind of due process right here? I mean, I'm wondering, this kind of goes not to the cause of action point or the preemption point, but more to the question of what procedures he might have been entitled to.
You don't make the argument that he was entitled to any, nor did I see the argument that he had any kind of constitutionally protected right to ballot access so that he was -- you know, and constitutionally entitled to an opportunity to be heard. Is that right?
MITCHELL: We made --
BARRETT: He had no due process, right?
MITCHELL: We made that argument below. We did not make that in our briefs to this court for several reasons. I mean, Your Honor is, I think, suggesting, and this is correct, that the proceedings below, to put it charitably, were highly irregular.
BARRETT: Well, I wasn't suggesting that.
MITCHELL: I'm sorry.
BARRETT: I was just asking --
MITCHELL: The question seems to suggest that there might be due process issues. But we didn't develop that argument in this court for several reasons. Winning on due process doesn't really do as much for our client as the other arguments that we've made, because that would be a ruling specific to this particular proceeding in the state of Colorado and would leave the door open for Colorado to continue on remand to exclude him from the ballot.
BARRETT: OK. Thank you.
ALITO: Justice Jackson.
JACKSON: Going back to whether the presidency is one of the barred offices. I guess I'm a little surprised at your response to Justice Kagan because I thought that the history of the 14th Amendment actually provides the reason for why the presidency may not be included. And by that, I mean, I didn't see any evidence that the presidency was top of mind for the framers when they were drafting Section 3 because they were actually dealing with a different issue.
The pressing concern, at least as I see the historical record, was actually what was going on at lower levels of the government. The possible infiltration and embedding of insurrectionist into the state government apparatus. And the real risk that former confederates might return to power in the South.