>> mr. chief justice then may it

please the court. the colorado supreme court held that president donald j. trump's constitutionally disqualified from serving as president under seion three of the 14th amendment. the colorado supreme court's

desion is wrong and should be reversed for numerous inpeent reasons. rsreason is that president umis not covered by section three because the presenis not an officer of the united states as that term is used throughout the constitution. officer of the united states fers only to appointed officials and it does not encompass elected individual chs the president or members ofoness. this is clear from the commissions clause, the impeachment clause and the appointments clause each of which uses officers ofhe united states to refer only to appointeanunelected officials. the second rean that section three cannot be used to exude a presidential candidate from the ballot even if that candidate is disqualified fro serving as president under section three because congress can lift that disability afr the candidate is elected but before he takes office. a state cannoexude any

candidate from federal office fr t ballot on account of section three and any stateha does so is violating the holding of term limits by altering the constitution's qualifications from federal office. the colorado supreme court's decision is no different from a state residency law that requires members of congress to inhabit this y ior to election day when the constitution requires only that members of congress iabit the state theyepsent when elected. inoth situations, a state is accelerating the ddle to meet a constitutionally imposed qualification and is thereby violating the holding of term limits. aninhis sitti, reeling from this court that affirms the decision belowould not only violatte 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 wheer or not section three is selfxeting. would you address that and in doinhat, you -- your argument that it is not self-executing but in that case butitthe role of the state be or is it entirely up to conesto implement the disquification in section three? mr. mitchell: it is entirely up to congress justice thomas and eir argument goes beyond that section three is self-executing. you need t same more than that because a non-self-executing cotitutional provion normally can still be enforced by a statef chooses to enact legislation. the holding of griffin's case goes beyond that by saying a stay is not allowed to implement force of section three of the 14 amendment unless congress

enacts implemeinlegislation allowing them to do so. under griffin's case, whiche believe is correctly did, there would not be any role for the state in enforcing section three less congress was to enact a statute that gave them that authority. >> what if someone came into the secretary of state's office and said, i took t oatspified in section three, i participated in insurrectionnd i want to be on the ballot. does the secretary of state have the authority in that situation to say no, your disqualified? mr. mitchell: the secretary of ste uld not do that consistent with term limits. even if the candatis an admitted insurrectionist it allows election office and see ether congress lifts the disali after the election. this happen fruely when confederate insurrectionists

were elected to congre a sometimes they had wver and sometimes they did not. each house is the soleudge of the qualifications of its members. if the state band even an mitted insurrectionist to the ballot it would be adding to and altering the constutn's qualifications for office because under section three the candidate need only qualify duri t time the candidate holds the office to which he has been elected. the secretary of state 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 difficult for an individual that ss i am an insurrectionist and i had taken the oath, that would require two ir of votes in congress. right? mr. mitchell: correct. chief justice roberts: that is an unlikely scenario. mr. mitchell: but no crary

of state is allowed tprict a waiver becausen ing so they are adding a qualification to the ability to run for congress. the proper analogis the state residency law because the constitution ss member of congress must inhabit the state he represents when elected. the lower courts have a hd a reliance on term limits that an official cannot move that deadline any earlier by requiring a candidate of congress to inhabit thste -- chief justice roberts: even if a candidate says i am rident of indiana and i he en all my life and i want to run for office in illinois, the secretaroftate cannot say you cannot? mr. mitchell:he question would be is the person going to inhabit the state when the election is held. if the candidate makes clear perhaps through a declaration or through a statementhahe has no intention of relocating to that state before election day,

enhe secretary of state would be enforcingndt stand constitutional qualification rather than enforcing new state imposed qualification a that is the key under term limits. is this day and anyway altering the criteria for a federal fice either for congress or the presidency? in this situation the coro supreme court is going slightly beyond whatecon three requires because section three onhase bands and office.ctionist from holding >> you admitted that the concept of self-execindoes generally permit states to provide a cause of actionorreaches of a constitial provision. fact, they do it frequently. here there is no debe at colorado has placed or provided that cause of action. you want to go a step further an say that this, like the

ealause, requires implementing legislation to permit the state to disqualify and insurrectionist. under section three. mr. mitchell that is corct justice sotomayor: history proves a lot to me and my colleagu generally, the are a whole lotf examples of states relying on section three to disqualify insurrectionists fit stage offices. and you are basically telling us that you want to go two steps fuheor maybe three. you want us toay that self execution does not mean what it generally means. you want us now to say it means that congress mustert states or requires states to stop insurrectionists from taking state office. and so this is a complete eemption 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 sotomayor: i don't disagree but not with respect with the way we do find self-executing. mr. mitcll we are not asking the court to redefine the concept of self execution. justice sotomayor: now the question is a very different one in my mind. i understand wt u are relying on, griffin's. let's clear. it was not a presidential supremcot decision. it was airit court decision by a justice who when he becomes austice writes in the davies case -- he assumed that jefferson davies would be ineligible to holdnyffice particularly the presidency and treated, and this is his own words, second -- section three

asxeting itself meaning no legislation on the partf congress to give it affect. you are relying on a nonpresidential case by a justice who takes back what he said. mr. mitchell: the key point for griffin's case and why it is an important precedent, it is not a president of this court but it provid t backdrop against which congress legislated the enforcement act of 1870. justice sotomayor: it did away with that later. it has nothing to say with respect for what section three means. n we get to the issue which is i think one i go back to that i started with and very briefly -- at sense does it say tt states cannot enforce section three against their own officials?

i think logically those are two separate issues in my mind. states and force the insurrection clause against their own officeholders or can they enforce it against federal officials? or can they enforce it against the president? those are a three different questions in my mind. mr. mitchell: and the answer to all three of those questions depends on whether thisou agrees with griffin's case. if griffin's se is the proper annunciation of the law than the state cannot do any of the things your honor suggest unless congress gives it the auory to do so. justice sotomayor: a presidential decision that rees on policy does not look at the language, does notook at the history, does not analyze anything other than the disruption that such a suit would bring you want to credit as presidential. mr. mitchell: because congress relied on ifn's case when it enacted the enforcement act of

1870 and established -- justice sotomayor: if i may interrupt, it -- thisounds like your reply brief where you are not making a constitutional commit but a statutory --argunt is that what you are doing here? you 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 case that gives you the role? mr. mitchell: that is exactly right, justice kagan. congress took up the invitation provided by griffin's case. the only enforcement legislati that is currently on the books is t insurrection criminal case and congress made all of these decisions, the initial enactment ofhenforcement act, the repeal of the provision 1948, they were all made with griffin's case as the backdrop the understanding was that these remedies would be exclusive of

state court remedies so there is not an express -- there did not need to be beusgriffin's case provided the backdrop. justice kagan: spo we told all of that away, ppose there were ngrfin's case and there were no subsequent congressional enactment, but do you then think thru would be? mr. mitchell: it is a much harder argument for us to make because normally -i mean every other provision of t 14th amendment has been treated as self-executing. there are practical considerations unique to section three that counsels in favor of a row similar to wh cef justice chase spelled out and griffin's case and it eso the policy concerns he talked abt. grf's case involved a convicted criminal whoas -- habeas cpu on the grounds that the judge that tried his case was and insurrectionist is qualified under section tee the chief justice realized that if he enford section three it woulnuify every official a

taken by this particular judge by anyone who wasn't insurrectionist or arguably and insurrectionist under section >> why do you need these in -- inconsequential. why d't you have an argument of the cstution of its own fours? of its own force? mr. mitchell the cld be an argument that is more limited. you are sgeing a barrier under the constitution to -- legislation for section three specific the federal officers and it could rely on presidents such as mcconkie. justice barrett: why aren't you manghat argument? mr. mitchell: the holding of grfin's case went well beyond that. the chief justice chase provided

e backdrop for the enforcement legislation that states had no role in enforcing section three unless congress was to give them that authority through stue they fast. justice barrett: your argen is a little broader than that because i tnkf we accept your position that disqualifying mee from t blot is adding a qualification, really your position is that cgress cannot enact a statute -- because congress would be adding a qualification which it cno do either. mr. mitchell: i do not agree with that. congress is not un by the holding of term limits. they only prohibit the state fr aing additiol publications or altering the constitution's requirements for federal --. ifongress were to enact imemting legislation that authorized the states to exclude insurrectionist from the ballot, we believe that would be valid enforcement legislation of section three with the important caveat that there has to be oportionality.

>> 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 congre were to go further and say tt you cannot run for the office, you cannot compete in a primary, wind that be adding an dional qualification for serving as president? you must have been free from this disqualification at an earlier point in time as secon three specifies. mr. mitchell: the answe to your question depends on howou interpret enforce in section five. so members of this court believed that enforce means you can do nothing more than enact legislation that mirro the --. that is not the c jurisprudence of this court. justice alito: we would get into the question of whether that would be congruent and optional. t me shift gear, i take you to

argue and i think you are right. the term self-executing is a misnomer as applied here. very often when we use the rm what we are referring to is th proposition that a particular provisioof constitution or a statute creates a private right of action. that is not the issue here. mr. mitchell: and sometimes the phrase self-executing is used that way but i would addha sometimes self-executing treaties -- the issue is whether it hasnyorce and domestic law. justice alito: i d't see what is gained by using this tm. at is involved here is the question of whether -- of whom can enforce section rewith respect to a presidential candidate. the consequences of what the colorado supreme court did, some people claim, wod quite severe. would it notermit -- would it

t lead to the possibility that other states would say, using their choice of law rules and their rules on coatal estoppel, that there is non-mutual collatel estoppel ait former president donald trump. so the decision of the coloro supreme crt could affectively dedehis question for many other states, perhaps all other states. could it not lead to that consequence? mr. mitchell: i don't think so because colorado law does not recognize --. and i believe the preclusive effect of that decision --. i inyour question, justice alito, givesise to a greater concern. if t decision does not have fe on other lawsuits it would have another possibility. different factual findings would be entered by ste ial court

judges andhemight conclude as a matter of fact that pridt trump not have any intent to engage in incitement or make some other finding different. justice alito: exactly. in this decision, the trial court in colorado thought it was proper to admit the january 6 report and it also admitted the testimony of an expert who testified about the meaning of certain words and phraseso people who communicate with and among extremists. another state court could reach an opposite conclusion. other states could conclude that the january 6 report was admissible hearsay and they might conclude that the statements witn e january 6 report are hearsay. and they could certainly have a different conclusion than the expert testimony of the professor. perhaps they could produce their own witness. juicalito:hould these

considerations be dismissed as inconsequential or do they support a structural argument that supports the decision you are taking? mr. mitchell i think ty mutually enforce each other. we have aarment we believe it is sufficient to dispose this case just based on meaning of officer of the stage all of the considetis are additional reasons to reverse the colorado supreme court although we don't ink it is necessaryt into consequences because the law is on our side. >> you keep saying term limits but there are other presidential qualifications in the constitution, age, citizenship and the 22nd amendnthat does not permit anyone to run for a second term. weava history of states disqualifying -- not all but some of disqualifyincaidates who would not be of age if elected. we have a history of at least

one state disqualiinsomeone who was not a u.s. citizen. are your arguments limited to sectionhree? mr. mitchell: not quite. the question is whether the state is violating term limits by adding two or altering the extent qualifications for the president and the constitution. justice sotomayor: so u nt us to say -- i'm wondering why the term limit qualification is importanto you. are you setting up so if some president runs for a third term. a state cannot disqualify him from a ballot? mr. mitchell: of course is taken disqualifyimrom the ballot because that is a cash that is categorical. 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 a scenario where e person is 34 euros old at the time of the election what he terms -- turns 35 before d inauguration. justice sotomayor: thatou come before us at some point. we would have to decide that question then. my point is -- so adding qualifications to what term limit is your aumt based on? mr. mitchell: i wil start with the age example. if a state like colorado says you cannot appear on our presidential ballot le you are 35 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 fo inauguration day. what colorado wrehere supreme court has done here is similar. under stion three president ump needs to qualify during the time he would hold office

and the colorado supreme court is send a president trump, you have to show that you would qualify de section three now at the time of the election or at the tat we the supreme court -- >> a point of clarification. when you say term limits you mean our decision and the term limits case. mr. mitchell: the u.s. term limits versus thorton. >> does it hmething to do with the fact that the particularirmstance you are talking about can change? i'm trying to understand the distinctn between the provision in the constitution that relates to the qualificatioonhe basis of insurrection behavior and these other provisions that justice sotomayor points out. they all seem to me to be x standonitutional requirements. but you are drawing a distinion. mr. mitchell: because some are categorical. >> what do you mean by

categorical? whether or not you are an insurrectionist -- mr. mitchell: because congress can lift the disability by a two thirds vote. >> why does athange the initial determination of whether or not you fall into the catego? 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? mr. mitchell: becausee n't know if president trump would be sworn -- would be excused for being sworn in. ana court saying that president trump has tohow now today that he could 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 thelo, can i ask you to address your first argument which is the

officer point? >> is that ok if we do this? will there be an oppty to do officer stuff? >> absolut [laughter] >> i just want to understand, on this theory, why does the sum total of ways that section three can be enforced? that somebody out there can say, yes, there has been a former president who engag oled or dissipated ian insurrection and so should be disqualified from office putting aside the officer argument, what is the sum total of ways that enforcement can happen? mr. mitche: the answer to that qution will depend on what your honor thinks about griffin's case. if this court were to affirm the ratione griffin's case then the only way section three cld

be enforced is through congressional legislation. coress could reinstate the -- provision -- and how does that fit with a lot of the answers to the questions that we have been given. you said congress has the abilitby two thirds vote to lift the disqualification. but so too, would think that provision woulde in some tension with what you just said if congress has the ability to lift the vote by 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. mitcll there certainly is some tension. andomcommentators have pointed that out. justice kagan:hen i must be right. [laughter] mr. mitchell: we don't think the problem is fatal. allows congress to lift aon that disability is something th c

do a part in per congress can create a mechanism by which the insurreio issue could be determi some enti, each house that has the ability to judge the qualifications of the members or in a decision from congrs it would be whatever congress enacts. each federal prosecutor had the authority to bring the writ againstcumbent official and seek his ouster from office underection three but it was still bjt to the amnesty provision in section three of the 14th amendment. do not think it is annsion but insurmountable obstacle. >> if you would analogize the lifting by congress of the disqualification by a two thirds vote to a pardon, thenurely we would not argue that the fact that the president or governor can pardon someone from a criminal conviction or a criminal offense meaning the person could note osecuted

in the first place for the crin offense. mr. mitchell: that rht. >> ion't see the tension, erare two separate things. did the person engage in the act? and even if the person did, are there reasons the disqualification should be lifted or the pardon should granted? mr. mitchell: if the court accepts the griffin's case th would be the ridging that we have. chief justice bes: d't know if there is a limit that e -- on something that someone can infer -- >> isn't that what you are >> the intention would be that you would have the exact same actor and say the actor can lift the disqualification by a two irds vote. and you are 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 by a simple

majority of one house. >> or by doing nothing at all if the holding of griffin's case is correct. >> ect. justice kagan:henly thing it takes to have no action is half plus one saying we don't file -- feel like it. mr. mitcll 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 of the 14th amendment. that sms to me highly probative are -- of what the meaning or understanding of what that otherwise elusive languages. mr. tcll: we did not rely too heavily on the point y are making partly because we have this otherpion from justice chase in t jferson davis case. that argument could potentially boomerang on uwhh is why we

did not push it hard on our briefing. justice kavanaugh: iant to let you finish that since== -- that sentce mr. mitchell: it might be lent and it might undercut why grip -- why thein's case is completely emblematic of what we arerying to point out. justice jackson: i had a question because you are making a contextual list argument. as i look at section three see two parts of the first sentence of section tee the first is a list of offices that aisalified person is barred from holding and second are specific circumstances that give rise to disqualification. first, am i right about seeing that there are two difre things happening in sentence e? are you arguing both or just e? are you arguing both at the office of t psidency should

not be considered one of the barred oices and that the -- a person that previously took a presidtial oath is not subject to disqualification? mr. mitchell: we are arguing both. justice jackso i don't see that in your brief. mr. mitcll there is a focus on the second and we had knledge that we have a heavier lift on the first. justice jackson: why? seems you have a list on the president is not on it. mr. mitchell: it -- every time it appears it is used in a way that excludes -- justice jackson: the first argument is that we have a list of offices that a person is barred from holding under your theory or under the language and we see itegs with senator, representative, elector of the

president and vice president, and all others civil or military offices. offices under the united states. but th 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 why? mr. mitchell: the president and vice president are not specifically listed but the anderson litigants -- >>ndo you agree that the framers would've put such a gh-end significant and important office or smuggled it inhrgh that catchall phrase? mr. mitchell: we don't age all. that is why we are making the argument that the president is exclud >> your brief says you did not make aosion #a position on that point. your brief, i don't have the site and i apologize for that,

but you do not affirmatively argue that point i think is what your brief said. mr. mitchell: we certnl argued it in a reply brief. we did point out in our opening iethat there are potential issues at this court would rule under because that phrase appears in oth pts of the constitution including the impeachment disqualificati clause -- >> i thought the point was that section three was uniqu that there was something happening with secon three that could explain why certain offices were leftff or whatnot. mr. mitchell: perhaps but there are also implications in other parts of the constitution which really helps us with the "of the officer" t united states. if this court were to say that e esidency is an excluded office under the united states that could apply at the

prt isot covered by the -- >> a lot hinges on the difference between come in your argument between the words office and offer and i guess i'm wondering what theory do you he om the original understanding or from a textual list perspective why those two terms so closely related would carry such different ig? mr. mitchell: because it is clear from the text that er are officers that do not hold ofceunder the united states for examplthspeaker of the house and the president pro tempore who are described as officers in article 1 -- chosen by the legislature. they also have to be officers if ey are able to be covered by the presidential successioac the office cserve when there is a vacancyn e presidency and vice presidency. they are not officers under the united ste if you are a member ofongress

you cannot simultaneously hold an office under the united states. that provision demonstrates that a member of congress cannot hold ofce -- justice gorsuc i appreciate that rpoe. is there anything in the orinal drafting history discussion that illuminates why that distinction would carry such weight? . tchell: not that we are aware so these are textual inferences that we are drawing but we are not relying necessarily on the thought process these people tt draftoes because they are unknowable. this language, especially section three, was enacted as a mpmise. there wereadal republicans that wanted too much further if you look se of the earlier drafts proposed. someeoe wanted to ban all inrrectionistsrom holding office and some wanted to go further and banned them even from voting. >> thank you, counsel. i have one technical question.

the statute of 1870, if it were still in effect, would require 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? mr. mitchell: it looks like it was done as part of a reorganization 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 states using section tee towbar -- to bar -- mr. mitchell: not that i am aware. >> thank you. justice sotomayor: i would like to condone your principal argument on section three. even though the president may or

may qualify for the qualify as an office of the united states, your principal argument is that the president is not an officer of the united states,rect? mr. mitchell: iould say it more forcefully than what you described. we believe the presidency is excluded from office under the united states but the argument that he is excluded is the stronger of the two textual. justice sotomayor: a bit of a gerrymandered rule designing it to benefit your client. mr. mitchell: i would not use the term gerrymandered as that would suggest nefarious -- justice sotomayor: only the petitioner is disquafi because virtually every other president except washington has taken an oath to support the constitution, correct? mr. mitchell: and john adams

ghalso bexcluded. president biden -- he took an oath as member of congress and it is true of erprevious president. justice sotomayor: would thabe true if we were to hold more narrowlyn reversal that it is not sectionhr that is at issue but as to whether section three could be enforced by states against the president? >> that would extend every presidential candidate. justice sotomayor: exactly. thank you. justice kagan: gen you said you don't ve a lot of edence 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 ia sensible one? if they had out about it, what reason would th ge for that rule? it does seem there is no

particular reason and you could think of lots of reasons to the contrary does say that the only people who have engaged in insurrection who are not disqualified from office are presidents who have not held high office befor --why would that rule is mr. mitchell: i don't think there is a good rational given th i compromise legislation. if there is an agreed-upon set of words that can pass bot houses of congress but different legislators may have had holes and they did not get their way -- ts s the text settled upon and it would seem odd that president trump would fall thugh the cracks in a sense. but there is no way that he can be covered under section three. justice kagan: is there any better reason if he goes to the fice argument that justice jaso was suggesting, is there any better reason then saying that an insurrectionist could

not hold the whole panoply of offices in the united states that we are perfectly fine with that insurrectionist bng president. mr. mitchell: i think that is the tougher argument for us to make from a policy matter. of all offices that wlde the one off as you would like to keep an insurrectionist out of. it is why we are leaning -- we e t conceding officer under but we deftly have a stronger textual case. justice gorsuch: i want to respond to somef e specific textual arguments on the officer of with the importance of the clauses. i want t see where you landed toda mr. mitchell: there are three textual inferences that can be aw but it does not say that the esident shall commission all the officers of the unid states.

xiao is mandatory. he cannot commission himself. that is one of t fst problems. the anderson litigants, think what they're trying to says the president cannot commission himself -- we also have members of congress who are n commissioned by the president and that is becauseheare not officers of the united states. the only sensible disncon we can see given the language is th offices of the united states -- officers of the united ates are appointed officials. in t impeachment clause enforces that. the president and e ce president are listed separately from officers of the united states and the appointments clause, we know the presenis not appointed nor is a vice

president nor are members of congress. they cannot be officers either. justice gorsuch: and how does article oneecon six fit into thdiussion? mr. mitchell: you have to be an officer to be in line of succession. we have a federal statute that puts the speaker and the president pro m fair in line of succession. they are officers t t of the united states beusthey are not subject to ieament. there is a ia gap between the rm officer and the phrase officers of the unit stes reinforcing the idea that officers of the united states are apart it does not jus referred to federal officeholders. justice kavanaugh: to make sure i understand how you are using griffin's case. section threrers to insurrection and raises questions about who decides what process e to be usedhat

were ratified in 1868. the next year chief justice chasopes that states do not have the authority and that only congress has the authority to enforce that. that could be idce as you say of the original public meang? your point is that it is reinforced because congress li on that precedent in the enforcement act of 1870 and forms the backdrop against which congress does legislate and a justice alito says, the historical praicfor 155 years has been that has the way it hasonwhere there have not been stated times trying to enforce disqualification under section three against federal officers? whether that is a federal liquidation -- do you want to add to that or alter at

mr. mitchell: that is exactly right and theast part is crucial to our argument. congress relied on griffin's case and it provided the backdrop against whi ty legislated wchs why we should read these mecnis. it is a form of implied prmpon. because congress made these decisions in explicit reliance on griffin's case. justice kavanaugh: and if we agree with you on griff's case and what you are elaborated on there, that is the end of the case, right? mr. mitchell: unless congress decides ect a statute. justice kavanaugh: a new -- and de -- you agree that someone could be prosecuted for insurrection by federal prosecutors and if convicted, could be or shall be disqualified then from office. mr. mitchell: the onlcaat would be at o client is

arguin that he has presidential immunity so we should -- we would not concede. justice kavanaugh: understood. justice barrett: griffin' case was a collateral proceedg. could griffinav-- even if section three is not a basis for collateral release in habeas which wa new at the time, could griffin have raised at his trial or indirect appeal the argument that judge chaffee -- you nn legitimately sit on my case because you are an insurrectionist and disqualified -- clde have won then? mr. mitchell: not if griffin's case is correct. the court would have to reject the rationale of griffin's case. justice barrett: i think there is some language that might be a litt bad but at bottom griffin's ses aut collateral habeas proceeding.

griffin had brought his case after the fact, he needed a contract shouldn't. why would it not work in a trial for him to challenge chaffee's constituon ability to adjudicate the case? . tchell: griffin's case hos that only congress can pride the means of enforcing ction three. he would have to await legislation omongress. justice barrett: let's su i disagree with you abouthe officer argument so section three covers president trump. let's say that congress an as provision th wld allow a state to bring such an a against him to remove him from office. wouldn't that be in some tension with impeachment?

he would be extracted from office outside of the process of impeachment. couldn't then presidt trump simply say, the only way to get me out of office is the impeachment process and not this action? mitchell: i don't know how that would play out because the action that i am aware of under the 1874 enforcement act reir --. your impeachment hypothetical would apply only in the present to any officer. i don't know how that played out in courts and if anyone tried argue that impeachment is the only remedy -- justice barrett: you said it is congress' exclusive province and you also saids to imply only after someone is holding thee and i'm that congress could not enact such -- as opposed to state

one. mr. mitchell: the impeachment clause says the president, the viceredent and the law can't -- should be red states congress can dun a position and eectively -- the other relevantrecedent is -- against laird where the jeffersonians appealed the midnight dg act some people thought that was unconstitutional the chief justice he that. that to me as a relevant president showing impeachment is not the only way to get rid of a federal official. justice barrett: doesdent trump have any type of due process right here> --? this gre to the question of what ocures he might have beenled to.

you don't make the argument that he had any kind of constitutionally protected right lot access and constitutionally entitled to a right to be heard? mr. mitchell:e de that argument below but not to this court. the proceedings quite charitably were highly irregular. the questio seems to suggest that the might be due process issues but wdinot develop that for this court for several reasons. it not do as much for our clnt. justice jackson: going back to -- i guess i'm just surprised

with how you are replying to justice kagan. i did not see any evidence that the presidency was top of mind for the framers when they were drafting section tee because they were actually dealing with a different issue. the pressing conrnat least as i see the historical rord, was actually what was going o at lower levels of the government. the possible infiltratn embedding insurrectionist into the state vement apparatus and the real risk tt rmer confederates might return to wein theouth via state-level election either at local offices or as representatives of the state in congress. that is a very different lens. you are concerned that the people- that seems tme very

different than the worried that an insurrectionist would take ntrol of the entire national government tou the presidency. -- i'm surprised yowod 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. juice kagan: -- justice jackson: is there idce? mr. mitchell: one of the drafts specifically mentioned the presidency and the vice presidency. justice jackson: but it was not the finalctn. mr. mitchell: it wasot the final enactment but it shows there was some concern aut some people about confederate structuralists ascending to the presidency. we did -- we looked at the historical evidence and the

otr de can get back and throw out evidence back in our face. we focus more on the text of the constitution because this was a compromise in section three justice jackson: lemesk you another question because you have made any argument about the states not being able to enforce seio three if we agree, what happens next? i thought you wanted us to end litigation so is there a possibility of contuein federal court? mr. mitchell: i am sure how it could unless congress enacts a statute. juic jackson:e would have to say congressional enain legislation is necessary for either state or federal enforcement. mr. mitchell: that is correct. justice jacks: the colorado supremcot conud the violent attempts of the petitionersn is case to hold

the countn january 6 qualifies as insurrection as defined by section three. i read your eng brief to accept that thoseves 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 posblbe characterized as insurrection. juicjackson: what is your argume tt it is not? your reply says -- i think you say it did not involve any organized attempt to overthrow the goveme. mr. mitchell: that 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 annsurrection? 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 three. ice jackson: thank you. >> thank you, counsel. mr murray. mr. murray: mr. chief justice, we areere because the first time since they were 1812, our nation's capital came under violent assault. the atckas incited by a sitting president of the unite states to disrupt the transf of presidential power. engaging in insurrection against the constitution, president trump disqualified himself from public office. as we heard, president tru's

mainrgent is this court shou cate a special exception to section three that onapy to him and him alone. he said section re disqualifies all both baking -- both breaking insurrectionists accepted former president who never fo upheld -held federal state or office. there is no rationale for an exemption and the court should rejecthe claim that the framers made an extra ordinary mistake. section three uses deliberately broad language to cover all posionof federal power requiring an oath to the constitution. they claim difference twn an office under and an offi of e ited states but this does not come down to mere prepitns. just a -- the two phrases are twoid of the same coin referring to a federal office or anyone who holds one. president trump's other

arguments for reversal ignore the role of the states in running presidential elections. under article two, states have the power to ensure their citize' ves are not wasted on cdidate who is constitutionally barred from holding office. states are left to safeguard their ballot by excluding those who are unr age, foreign-born, running foa ird presidential term, or as here, those who have enged in insurrection against the constitution. i welcome the court's questions. justice thomas: do you have contemporaneous examples? shory ter the adoption of the 14th amendment wre the states disqualified national candidates, not its own candidates? mr. murray: the only example i can think of is the example of commerce and christie w w

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 in. there would not een a process for determining before an electioher a candidate was qualified, like the processes we have now states created under article one and article two powers. justice thomas: it would seem particularly after reconstruction and after the compromise o 1877 and during thpeod of redeemers that you ulhave that kind of conflict. there were a plethora of confederates stillrod. there are any number of people who run for state offices or national offices.

that would suggest there would be a few examples of national candidates being disqualified if you' rding is correct. mr. murray: there were national candidates disqualified by congress refusing to seek them. justice thomas: that is not this case. did states disqualified them? i understand congress would not. mrmurray: otherha the example i gave, no. that is not surprising because there would not have been -- states would notave the authority to remove -- juste omas: what was the puosof section three? states were ndg people -- the concern was that the former confederate states would continue being bad actors. the effort was to prevent them from doing this. you are saying this also authorized states to disquif candidates. when i am asking you for, if you

are right, what e e examps ? 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 talking about our national candidates. -- are national candidates. you look at shelby foote or mcpherson, they lkbout the conflict after the civil war. there were people who felt very strongly about retaliating against the south, the radical republicans. they did not think about authorizing th south to disqualify national candidates. that is the argument you are making and what i would like to know is, do you havan examples of this?

mr. murray: many of those have led briefs, the idea of the 14th amendment was with states and the federa government would insure rights and if failed to do so, the federal government would also step in. the reason therereot examples of estates doing this is an iosyncratic one, elections work differently. states have a background pow under article two to run presidential elections. they did not use that power to police ballot access until the 1890's. by the 1890's, everyone had received amnesty. >> looking at justice's thomases -- justice thomas's questn, estate shall not -- immunity, wiot process it without due pres

on the other hand, it gmted federal power. congress has theow to enforce it. wouldn't that be the la pce you would look for authorization for the at, including confederate states to enforce the presidenal election process? that seems to be a position at war with the whole thrust of the 14th amendment and very ahistorical. mrmuay: we would locate the state's authority not in the amendment would in articlewo and that is plenary. chief justice roberts: you have no relncon section three, is that what you're saying? mr. murray: we have reliance on section three so far as article two gives states this broad power to determine h tir electors are elected and that power implies narrower power to force constitutional

qualifications. chf justice roberts: dinero power you'reooking for is the power of disqualification. that is a very specific power in the 14th amendment and you are saying that is implicit the extended to thstes under a clause that does not address th at all. mr. murray: wwould say nothing at the 1h amendment takes away from the states their power to determine the manner of secting their electors in the manner they see fit. that power is nearly plenary -- nearly plenary a lessening enti cstitution tells states they cannot do it. the structure of the 14th amendment was to expand federal power and restrict state power. states are bound t enforce ction one of the 14th amendment. it is hard to see why states would not be similarly bound. >> states have the power to oose electors, granted. just because there is one

authorized means uer the constitution to a particular end does not mean there is any means to that end. i think you are taking that electors argument and bringing it into section three where the chief juic ss says there is no htocal evidence to ppt the theory of section three, nor to explain the overall structure of the 14th amendment. . murray: we certainly have a long history ith country of states using their power t determine the manner of seleinpresidential ectors to enforce other qualifications in the constitution. i don't think there is a debate onheer or not states are allowed to -- they could be excluded underheroad article. i don't see why section three should be treated any different. section 3 -- justice kavanaugh: wn u look

at section three, the turn- the term insurrection jumps out and the question are, what does that mean? how do you define it? who decides whether someone engaged in it? what process a appropriate for figuring out where someone did engage in tt? that is what they focuse on as if to say these are difficult questions. you look at the amendntnd that tells you that congress has the primary role. what is different is the processes, the definition,ho decides. these questions jump out when you lookt ction three. your response to tha mr. murray: there has to be some process for determinthose questions. the question becomes does anything inhe4th amendment say only congress can create at process?

section five is not an exclusive provision. it is congress may have power. >> the question you have to confront iwha single state cides who gets to be president of the united states. thisueion of whether a former presints disqualified for insurrection, just say it, itounds awfully national. what means there are to enforce it would suggest they have to be federal, nationames. if you weren't from colorado and you were from wisconsin or from miig, with the michigan secretary of state did is going toakthe differenceetween whether candidate a is elected or candidate b is elected. that seems extraordinary, doesn't it? mr. murray: no, becauset ultimately this court that will decide tt estion of

constitutional eligibility and settle the issue forheation. it is not unusual that questions of national importan ce up -- justice kagan: this court would be saying some thing along the lines that the state has power dit. i was asking you to go further and say why should that be the right rule? why should a single state have the ability to make this determination not only for their noncitizens but for the restf the nation? mr. murray: article two gives them the power to appoint their own electors as they see fit. if they are gog to use a federal constitution qualification as a ballot access determinant, it is creating a federal constitutional question this courtecides. if this court affirms the decision below determining president trump is ineligible to be pnt, other states would have to determine what effect that has on their own state's lien procedure. justice barrett: if we said he

was ible to be president, maybe yes. debbietes with say we will keep him on the ballot anyway. it is going to have the effect of colorado deciding. i want to push back on it is a national thing becausehi court will decided. you say we have to review colorado's factual record with clear error as a standard of review. we would betu with that record. i don't want to get into whether the record -- maybeheecord is great. what if the co 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 process at l? how do we review thosfaual findings? why should -- apply and doesn't that buckle back intohipoint that justice kagan was making, with mr. mitchell, too, thatt

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 his reply brief that sometimes on constitiol questions that require uniform resolution, this court can do an independent vi of the record. would have no objection to that given the record here -- the facts that are disputed here are incredlyarrow. the essence o case is president trump's statements he made in puiciew for all to see. justice barrett: that is saying atn this context, if we review the facts, you want us to watch the video of the ellipse and make decision without any deference to or guidance from lower court fact-finding? . murray:resident trump himself urges this court to dede the millage others -- the merits of his eligibility t factual record of page two. he has never at any point to suggested there is something

else that needed to be in the ctual recor a other witnesses he wanted to call. thesnce 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 thetas -- the state's power here over its ballot has to come from some constitutional authority? mr. murray: members of this court have disagreed about that. >> i am asking you. mr. murray: the majority of this court has said those powerco from article two. we think the result is the same whether the court located in article two or reserve power of the 10th amendment. justice gorsuch: you are not asking us to return to that -- it has to come from so feral

constitutional authority? mr. murray: no, war not. justice gorsuch: we're not talking about the qualifications clse. nobody is talking about whether he is 35 years old or natural born. not an issue. we are talking about something under e th amendment in section three. that is where you have to defined your authority, right mr. murray: we find our authority in article two in a state's power to run an electn . justice gorsuch: this is a federal office and it has to come from the constitution and you are seeking to enforce seion three? mr. murray: we are ggting in their broad power to select presidential electors they see fit, they can take account of section three. justice gorsuch: could they do it without section three? 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 section three.

if that is true, how does that rk given that section three speaks about holding office, not who may run office -- run for office? it seems to me thatoure asking to enforce an election context. provision of the constitution speaks of holding oice. it is different than the qualifications because which is about who conducts the qualification clause which is about o n run and serve -- it's about the qualification because which is about who can run and serve. mr. murray: there inothing constitutional about a 30-year-old yi 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 sality does not negate the fact that the disability exis today and has existed since january 6, 2021 when presiden

trump engaged in insurrection. justice gorsuch: were his actions after that date before he left office on coherence? -- walter baran's? is that where your argument leads? mr. murray: that may be the one place and a griffin's case where we agree which is when the justice that i talked to my lleagues and we unanimously agree you cannot collaterally attack all actions of any officer who is in fact holding the position. justice rsh: let's circle back to where we started. section 3, 2 authori h to come from there. it is about holding office and a particular kind of disability that can be reveby congress. it is e ly one like it that. eyannot remove age or citizenship. how does that form our thoughts about estate's efforts to regulate the ballot for a federa office?

mr. murray: the fact that congress has an trrdinary removal power does not negate that the disability exists today and is indefinitely into the future, much like the fact that the president can pardon somebody for criminal conviction does not make that conviction somehow contingent. i ul note iprident trump were appointed to any office today aa 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 qualifications. nor does it besw on president trp constitutionalight to run for office is he cannot hold in violation of state law and state procedure under artic two. >> there was a congressional action to commit competitor officers or people who supported the confederacy tho office before the 14th amendment, correct?

there must have been a thought that there was a pre-existing disqualification. mr. murray: that was right. there were a flood of amnesty requestsefe section three went into place -- went into effe because people understood those people would be disqualified the moment section three was enacted unless they received amnesty. justice sotomayor: what do you do with the nsuences of your position? if colorado's pitn is upheld, there will be qualification proceedings othe others and some of those will succeed. some will have different standards of proof. some will have different rules about evidence. maybe the senate report would be accepted because it was hearsay. maybe ibeyond a reasonable doubt. i would expect, though my predictions have nereen correct, a good number of states

will say whoever the democratic candide , you are the ballot -- you are off the ballot and others, your off of the ballot. itilcome 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 proviois not a reason -- chief justice roberts: you mht think differently, but the people whori 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 and eventually if there was an insurrectn en one president did something as pod to when someone else did something else,hado we do? we wait until near the te cutting the ballots -- counting the ballots for which states are valid and which aren't? mr. murray: there is a reason section three has been dormant,

we have not seen anything like january 6 since reconstruction. insuecon against the constituons something a short mary. chief justice roberts:t ems to me you are avoiding the question which is other states mit have different views about what constitutes insurreio you are saying is all right because somebody will decided they tug that was in insurrection but they were wrong. maybe they thought it was right and we have to develop rules for what constitutes an insurrection. . murray: just like this court interprets other constitutional provisions, this court can make clear that it is something extraoiny. it requires an concerted 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 chf stice's opinion in 1859 which says congress has the authority here, not bes.

that is followed up by th enforcement act of 1870 which congress acts onha understanding. there is n history contrary in thaterd as justcie thomas: pointed o -- justice thomas pointedut. there is no example of states exercising such authority. the reason it has been dorman is because there has been a settled understanding that chief justice chase was essentially rit and the branches of the government have acted under that understanding for 155 years and congress can change that. congress does have section 23, the insurctn act criminal statut congress could change it but ey have not in 155 years. mr. murray: no, the reason has been dormant is because by 18 76, all former confederates hareceived amnesty. we have not seen anything like any insurrection since then.

i uld like to address your point -- chief justice roberts: justice alito. justice alito: i don't know how much w can infer from the fact we have t en anything like thisndherefore conclude we are not going to see somethi in the future. om the time of the impeachnt of president johnson until the peachment of president clinton , more than 100 years later, there were no impeachments of presidts and fairly short order over the last decades we have had three. i don't know how much you n for from that. mr. murray: this court can write any opinion that emphasizes how extraordinary insurrection is and how rare that is. iteqres an assault not just on the application of law but o constitutionally mandated functions. we saw andre with six a coordinated attempt to disrupt a function mante by the 12 amendment and essential to th

transfer of power. >> l me ask you about if the power you describe disciplinary is reallylenary. suppose the outcome of an election for presidentom down to the foot of a single state -- to the vote of a single ste. suppose cdidate a gets a majority of the votes in that state but the legislature does not like candidate a and thanks candidate a is an insurrectionist so the legislature passes a law ordering to vote for the other candidate. do you suppose the state has that power? . murray: there are principles that come into play in terms of after the peoe ve voted that the state cannot change the rules. i am not sure because i'm not aware of this court addresng it. justice alito: let's chae so it is not after the election. threeay before the election

based on the fact that the polls in that state look bad. can they do it? mr. murray: i think they could under this court's decision wh this court emphasized for much of history state listures assign ectors themselves but that would be work ordinary than ate have here which is simplepplication of normal state ballot access principles to say we're only going to put on an individual qualified to assume the office. chief justice roberts: can i ask you the question justice gorsuch asked? look at that going forward th than judging on the baluchi guy on the validity of any act committe between a time when a president allegedly engages in insurrection and leav office. during that period, would you be laul for military commanders and officers to disobey orders of the president in question?

mr. murray: i am not sure anything gives military officer the authority to adjudicate the legality of the presidency. justice alito:s a he is disqualified from the moment it i understand that the diff are -- the de facto doctrine might be usetorohibit people from using judialemedies for cions that take place after the date he was disqualified. if he is in fact disqualified, from that moment, why would anybody have to obey a decon from him? mr. murray: ultaty there has to be some procedure in place to adjudicate the qualification. congress can impeach a sitting president but th ithe only remedy for negating the authority of a sitting president. justice alito: why? section three speaks of disqualification from holding office. he say he is this qualified from

holding office from e moment it happens. mr. murray: correct justice gorsuch: you say there is no legislationessary. i thought that with the o3 of your case. no procedure happens aumatically. mr. murray: you need a procedure to have a remedy to enforce t disqualification. justice gorsuch: that is a whole sera question. that is the de facto doctrine. that doesn't work here. he is disquifd from the moment, self-executing, done. wod think a person who would receive a direction from the former president in your view would be free to act as he or she wishes without regard to that individual. mrmuay: i don't think so. justice gorsuch: wipe? --hy mr. murray: effective -- the de facto provision would come to play. justice gorsuch: that is not work.

put it aside. justice alitosk a different question, i think it deserves an answer. 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 former president was elected and they were 25 and ineligible -- justice gorsuch: no. we are talking about secon three. please don't chgehe hypothetical. i like doing it, too. he is disqualified from the moment he made any insurrection, whoevehes from whatever party. that happens. it happened. what would compel -- try to into the question -- to answer the question. what would compel a lower

individual to eyhat individual? mr. murray: whave rules requiring aiof command. person is in the office, even if they don't have authority to call the office, the only way to get the office of t psidency is impeachment. if yountpret section three in light of otherrosions, while they hold office, pehment is the only way to validate they do not have the should be removed.at office and >> can i ask you about something juickagan brought up? uniformity and the lack thereof if states are permitted to enforce section three in presidential elections. i guess i did not really understand your argument or your response. mr. murray: if congress is concerned about uniformity, they can provide legislation and eet state legislation. >>s not necessary.

mr. murray: it is not necessary. in the lack of -- either the absence of federal -- a state adjudicates them. if the state has not provided the process toomrt with due pres one can make those challenges. assuming as here we have a full evidentiary record and any opportunity to prevent evidence. justice jackson: i understand we couldn't soe it so we have a uniform ruling on it. my question is, why the fme would have designed a system that could result in interim this uniformity we have elections pending and different states suddenly saying you are eligible and you are not on the basis of this kind of thing. mr. murray: what they were coerned about was assuring insurrectionists and rebels don't hold office. one understands the imperative

they had to su both breakers would not take office. it would be odd to say states account can force it -- cannot enforce it, only the federal government can enforce it and congress can rip a heart out of section three by a simple majority. it creates redday. the facthastates have the ability to enforce it absent federal preemption provides an additional layer of safeguards. justice jackson: i will ask you about the history when i get a chance again. chief juroberts: justice thomas. justice alito. justice alito: suppose there is a country that pclaims again and again that the united states is its biggest enemy. suppose the president of the united states for the ma reasons thinks it the best interest of the u.s. to provide funds or release fo they can be used by that country.

could a state determineth person has given aid and comfort to the enemyndherefore keep that person off of the ballot? mr. murray: this court has never interpretedhe eight and comfort language which is in the treason clause. it has been really applied because treason osutions are rare. commentato he suggested that aid and comfort only applies in a declared war or any adversarial relationship where you there -- where there is in fact a war between two countries. the standard would do a lot of work there because under secti three, whatever the underlying conducts,t 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 of what we would do if different states had

adjudicated the question of whheformer president trump is an insurrectionist using a different record, different rulings on the admissibility of evidence, perhaps different standards of proof. what would we do? mr. murray: if there were deficiencies in the record, the court could refuse to hear the case or decide based on deficiencies of the record. justice alit we have to decide what is thapopriate rule of evidence that should be 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. rr: no. th court takes the evidentiary record as it is given and here we have an evidentiary record agree that the partieage it is sufficient in this case. there is a posbity of an

independent review of the fact. ultimately what we ha iany insurrection incited -- justice alito: you are not answer my question. it is not helpful. ppose we have two different records, two different bodies of evidcetwo different rulings on questions of the disability, two different standards of oof, two different sets of fact-finding by o fferent judges or maybe multiple judges in multiple states, what do we do? mr. murray: this court would set the legal standard and then decide which of you the record was cre. justice alito: which view of what record? mr. murray: if this court had two cases and bh the records were sufficient insofar as both have the opportunity to present -- their case, then this court would have to look at the evidence presented and decide which holding was correct a

decide that issue for the country. when there is a complete record, the records will be applying e decision. i think it is unlikelan court would say we will reach a different decision than the supreme court did, particurl if the court relies on the fact of what president trum said on video and in his twitter fd which is the essence of our case. stice alito: you had an expert testified about the meaning of what president trump said. do you think it is possiblin different state court -- a different state court would apply talrta differently and say this person should not be allowed to express an expert opinion on that question? do you think that is beyonth realm of imagination? mr. murray:. not at all. number one, president trump did noapal the admission of that evidence. number two, the point is

producg did not opine on the meaning of trouble's words, on the effect of those words had on extremists. the essence was around videotaped statements of trump himselfncouraging and praising political violence. juicalito: i am not taking a position one way or anhe about whether the expert's testimony should have been admitted or anhi like that or the meaning of president trump' words, im ying to get you to grapple with what some people had sn the consequences of the argument you are advancing which is that there will be conflicts and decisions among the states. different states will disqualify different candidates. i am n gting a lot of help from you about how this would not be any unmanageabl decision. mr. murray: this court writes affirming on the effects wt president trump said on january 6 and the weeks leading up to it and his virtual concessions on

twitter afteth fact, it would be reversible r y state to conclude oerse on that question of federal law or list this court can address that windows issues come up. it seems unlikely. chief justberts: justice sotomayor? justice sotomayor: there a t sides to the other side's position. the first is that is not lf-executing - some executin -- it is not self-executing. they want to say even congress cannot dit bause they need implementing legislation. address that argument. a rule that steson't have it , what would you have a y r the other side of the argument? one mcolleagues says --

circuit court justice said somehow i need implementing legislation like the 1870 act. you seem to y at is not true because they could decide not to seek the candidate so don't know if legislation is necessary. mr. murray: there are example under congress's per to judge the qualicions of its mbers, neighbors of commerce resing to seat candidates who won an election. in the context of the pridency, it would create a number of difficult issues if the court says there is no procedure fodermining president trump's egility until after the electionnd then what happens when members of congress are generally sixth

sawere not going to cut electoral votes cast f president trump because he is disqualified under section 300 electoral count. a number of briefs have made the point that that is a dinfranchisement and more the reason to address his issues now in a judicial process. everybody can have certainty on those issues before they go to the polls. justice kagan: you relied on the state' powers under the elector clause. you talked about the states having a re in acting -- enacng valid provisions -- llot provisions. we have put some limits on that. i will give you anderson versus a by an example. stes are limited in who they can takefff a ballot. that was a case about minor

party candidates. the reason was one state's decision to take a ballot off of -- a candidate off of the ballot affects everyone else's rights. we tkeabout national test and the selection of caidates for national office. t talk about how any individual state decision would have an impact beyond its own borders. if that goes for minor political party candidates, why does it not go for the suaon in this case? mr. murray: constitutional princiesike section three apply to everybody. the issue there was a firs amendment question. there is no doubt that states exercise their power under article two is constrained by first amendment principles. in that case, t ste law deadlines for any minor party candidate are on the balt me too soono reactive to what major parts have done and therefore risk disenfranchising people with who the majo parties have picked.

here there is no first amendment problem. a state is trying to enforce an existing qualification baked into our constitutional fabric. justice kagan: there is a broader principle there about whhas power over certain things in our federalystem. states have great power over ma different areas. there is some broader principle about that there are cta national questions. states are not the repository of authority. took a lot of anderson's reasoning. what is this data doing -- is a state doing the siding -- deciding who other citizens get tofor for president? mr. murray: colorado is not th siding who other states get to

vote for president, is deciding its own electors under article two. justice kagan: the effect of that is obvious, mr. murray: no, different states can have different pros. some states can allow insurrectionistso be on the ballot. we are not looking into constitutional questions. even in this election cycle, ere are candidates on the ballot in some states even citizens.ey are not natural born that is aion of states power to preserve their own electors and avoid disenfranchisement of their citizens. justice kagan: thank you. chief justice roberts: justice gorsuch. justice gorsuch: i have not had a chance to bout the officer point. mr. mitchell makes the argument that in the commissions clause, ficers are to be commissioned by the president. seems to be all-encompassing, that language. i am curious your response to

that. along the way, i poked at the difference between office and officer in the other discussion. one point your friends o outside would make -- on the other side would make is that is how the constitution uses those terms. when y're the president pro tem of the senate and is bigger of the hre officers of the unittes because the constitution says they are. you also know they don' hold any office in the united states because of the incbility clause that says they cannot. delay reader might look a little odd. not prepositions, nouns, a distinction. maybe that is how it works. mr. mui would start with the idea that the meaning of

officein the 1780's is the same meaning today which is a person that holds any office. in certain contexts, it appears that is referring to a narrer class of officers. justice gorsuch: is says all. mr. murray we know there are classes of offics like the president pro tem we don't get commissions from the president. justice rsh: that is best because -- that is because the constitution says elsewhere. mr. murray: -- getting the mmsion from the constitution itself rather th aointment. people who get commissions from the prede are not commissioned by the president. ifou read the clause, the commissis ause is talking about the president's power if one needs a commission, the president grants it. it is important to bring us back to section three. justice gorsuc a distinction between office and officer. you agree the constitution does make that distinction, particularly with respect to the speaker pro tem?

mr. murray: the constitutio makes that distinction at least in section three, any officer of the united stateis a person who swes oath and holds any office. thpresident pro tem and speaker of the house don't swear it constitutional oath in at 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 swear any oath. 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 the house and senate because they psi 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 kavanaugh: other questions about different at having different standards of proof seem underscored byhi case, the dissenting opinion ere justice amore said i have been involved in the justice system 33 years now. what took place here does not resemble anything i have seen in courtroom. and then added"wt transpired in this litigation fell short of what do process demands." i don't know if i agree or not, but the fact that someone is mplaining about the bottom line conclusion but the processes used in this state and

that that woulbeermitted underscores the concerns raed about state power. i want you to have a chance to address that because that is powerful language. not about the cclion but the fairness of the process. mr. murray: that language with respect to justice more was not correct. president trump had a five day trial, he haan opportunity to call any witnees we had an opportunity to crs-examine witnesses. headhe opportunity to testify. the process was expedited because ballot access decisions are always on a fast schedule. from the trial court up ts court, president trump has never identied single process other th eert definitionse wanted to have that he did not get. he had the opportunity for backwardness definitions, he had the opportunity to call witnesses remotely there was ample process here. this is how ballot access determinations in election cases

are decided all the time. juickavanaugh: some of the rhetoric of your position seems to suggest unless e ates can do this, no one can prevent insurrectionists from holding del office. congress has enactedtates, including one in eec, prohibits insurrection, a feral criminal statute. if you are convicted, you sha be disqualified from holding any office. there aederal 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 confederates had received criminal pardon. justice kavanaugh: the question

is different which is if the concern you have, which i understa is that insurrectionists should not be leo hold federal office, the residual to ensure that does not happen, namely federal prosecution of insurrectionists. if convictedcoress made clear you are medically barred fr holding a federal office. that truly exists and could be us against someone who considered joshua committed insurrection. -- someone who considered -- someone whcoitted insurrection. mr. murray: that is rht section re made clear that criminalrocution is not suffie because oftentimes insurrectionists gonpished as was the case in the civil war. even if we don't have the stomach -- justice kavanah: a provision was in effect from 1870 to 1948, but that dropped out and has not been sn necessary since then.

in trying to figure out what ction three means to the extent of the language, what about the idea that we should think about democcythink about the right of the people t elect candidates of their choice , letting the people decide? your position has the effect of disenfranchisi voters to significant degree. does tt me in and we think about should we read section rethis way or read it that way? what about the background principal that democracy? mr. murray: i would like to make three points. constitutional safeguards are for the purpose of safeguarding our democracy, notusfor the next election cycle but for generations to come. section three is designed to protect oudecracy in that way. the framers knew from painful

experiencehathose who had broken their oath to the cotition could not be trusd holdower because theyou dismantle our democracy from within. they created a democrac fety valve. trump can ask congsso give them amnesty, but unless he does that, our constitution protects us from insurrectionists. th case illustrates the dge of refusing to apply section ree has written. the reason we are here is presidentrump and tried to dinfnchise 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 that abst re circumstances, state courts and federal courts share authority. there are certain limits to that , limits to which the constitution preempts the state's ability to resolve constitutional questions. you said earlier that once a

president is elected, you accept a staging could not do ag about that. colorado cannot enact its own provision and use it to get the secretary of state out of office. i assume that is because of this principle of struc preemption? mr. murray: yes, your honor. justice barrett: i want to clarify what that means. that mea your aches are in the basket of the electorate clause. you a saying that even though all of the questions have suggested there is a problem with giving a single state the authority to render a decision that would he y effect on a national election, you are saying those structural concerns which might otherwise lead to e kind of results you would accept after someone is in office, overcome by the electric cross. mr. murray: absolutely. stat r presidential

elections. what states have selected elto and they have voted, states have no more power over the candidate who has been nominated. until then, the states have the power audicate those issues. justice barrett: thank you. chief justice roberts: justice jackson. ste jackson: when i asked you about the uniformityoncern and the dish uniformity of having different ste enforce ction three with respect to presidential elections, yo seemed to point to history in a ceaiway. you said i think the framers ensioned states and fci section three -- states and forcing section threateast in some circumstances. in my view of history, i am wondering whether presidential elections were such a rcumstance that the framers acallynvisioned states and foing section three with

respt presidential elections as opposed to senatorial elections, representatives, more woeful concerns. can you speak to the argument that section three was about evting theouth from rising aiin the context of the local elections as opposed to focusing on thpresidency? mr. murray: two points on that, first was as i discussed earlier, there is not the same hiorof states regulating ballot access. ballot access rules to restrict presidenti candidates would not have existed. they would not have been raised one way or another. justice jackson: i'm not makin it a station between ballot access and anything else. mrmurray: underoo what iserclear from history is the framers were concerned about charismatic rebels who might rise through the ranks up to and including thenid states president. justice jackson: why don't you

put president in the enurad list in section three? the tnghat is troubling to me is unrstand your argument, but they were listing pele that were barred and president is not there. i guess that makes me worried they were not focusing on the president. for example, the fact that electors othvice president and president are thereugst if we are worried about the chismatic person, we are going toar insurrectionists electors and therefore that person is no longer going to rise. mrmurray: this came up in the debates in congress over section three er johnson said why have you not ilu president and vice president in the language? seto moore response, we have. any office under the united states. justice jackson: doesn't that suggest ambiguity? this ties into justice kavanaugh's point.

we had a person at the time saying what asaying, the language does not seem to incle esident. why is that? if there is ambiguity, why would we construe it to >> johns ce back -- it is clear that the constitution says about 20 times. christ let mjust say. your point is that there is no ambiguity. with this conversation where the legislators actually discussed what looked like aiguity, you are saying there is no ambiguity. >> this is important. they do not hold an office. they vote.

>> 'm talking abouthe office part of this. >> first you have to sci electors. they would not fall under any office. they do not hold office. the constitution told us that under the clause and refers to them. u nt to make sure that there is no doubt the area covered, given that this constitution ggests otherwise. other high offices, the president, vice president -- wes i priate that argument. if wehi that the state caot enforce this provision for whatever reason, ith context, what happens next in this case? is it done? >> if this court concludes that

colorado did not have the authority to exclude trump, i think this case would be done, but i think it could come back with a vision wh a vengeance because they would have toakthe determination about whether or not he is disqualified from office. president trump himself looks to resolve. tre is no federal ligaon, you would say? >> that is correct. short of criminal prosecution. >> thank you, counsel.

>> mr. chief justice, may it please the court. far-reaching powers under the clause specifically direed colorado's court to resolve any challenges to any candidate on the presidential primary ballot. they contend that corado must puhion the ballot because of the possibility of a super majority act of congress. under this theory, colorado and every other stateou have to indulge this possibility not stor the primaryuthrough the general election. nothing in the constitution strips themn this way. the case was handled capably and efciently under a process that we have used to decide ballot challengesorore than a century. i lce your questions.

>> is there an express provision that the -- that defines what a qualified candidate is? >> there is not an express provision. they look at the need to be qualifd. >> how do we get to thiise of qualified candidates? if i could have a standing objection, you should not review -- >> i'm just looking at the statute. >> we have three important provisions that show tt candidates have to be qualified. it requires thathe political party has to have a candidate. the candidates alsha to be qualified. >> we are actually tki about

the participation of a political party, right? not the paication of a candidate. >> the fight- e fact is confirmatory that they had to be qualified and would not be otherwise. >> how is section three qualification? just on its face. >> a candidate must meet every criteria for eligibility. not being disqualified. there is a difference between those two things. >> yousent the secretary of state, right? if you are the secretary of state and someone comes in to say, i think this candidate should be disqualified, what do next? >> if ey obtain objective

information, the secretary can act on that. >> theecretary decides that? >> in some instances. the challenge was brout fore the paperwork had even been submitted. because the d already been a challenge submitted, the secretary did not even make the deteinion. in another case where that s not the procedure that was filed, maybe they had a stack of per saying, i think this is why the person is guilty of insurrection it is something that happened do the street, but they say this is still an insurrection. >> athing not even presented th level of controversy would sit in -if anotherndidual who brought the information brought it, the secretary could

bring that action. >> is there any provision in colorado and with what you know about other states? >> a can use t 1 process to do so. the are other states that alw other versions of that. >> i think we are told that there aretas that do not provide for review. is that incorrect? >> i think that is correc some do not have a mechanism to come to. there are some states tt not have any mechanism to exclude a candidate from the ballot at all. i want to speak about --

would that be constitutional, if the seety of state's determination was finally? >> i think that would be constitutional. they had a broad authority. >> can a state that provides different rules of evidee and different standards o proof with this proceeding >> it is under the same power. >> perhaps a different provision. >> there are other constitutional constraints. >> what is the due process ri what is t liberty interest?

>> i think there is a recognition and there is some due process interest in being able to procs e ballot. >> i thought that was for voters. did you think it would be taking something away from the candidate? >> candidates can have an issue abt being on the ballot. it is a qualificationslause all stacked together. >> these decisions might be made different ways. it makes it in a very specic process. would our rorvery depending on the procedure deployed by the state? >> think they have discretion.

might be based on the process employed by an individuaste. you could exercise independent review or you could give deference to a full pceeding. >> i'm cite. you think we should give deference in rev the factual record and conclusions? website and amenable to suggestion for independent review as to what the court's positi >> we could reach disparate results on the same record, right? >> i think that is possible. >> this disqualificaons the same as any other

diualification. residents or what have you. >> that is correct. >> what if i push back on that and say this dqualification to the pot of the 14th amendment was to take away certain powers. number two, sectree itself gives congress a very definite role that mr. mitchell says is inrfered with t ability of states to take somebody o the ballot. it is just more complicate more contested. why don't all of those things make a difference? >> i think therole with categorizingt is an assumption that is coming up because of this case. back to the chief justice's point, we coulha an easy case with a insurrection who wrote on his perrk, i

engaged in insurrection. it would be an openndhut case as to whether or not that person would mee the qualifications tben 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 determination to adopt that particular candidate as in insurrectionist. could have a cascading effect so at a decision by a single judge whose factual findis e given deference, maybe a trial judge would have an enormous

effect on candidate t run for president across the country. is that something tt should be concerned about? >> the concern is maybe noas high as it could be. there is a huge amount of disparity in different states and every eleio there is a candidate that they diualified on the ballot. it was a feature of r process with respect to decision-making, we give nationwide guidance. that reduces the potential amount of disparity between the states. with respect to the factual record, they have processes for this. i think we need to let that play

out because that ishat the electors cusassumes will happen. congress can act at any time, if it inks it will run amok. >> we have been told that if what colorado did here is sustaine oer states will retaliate. they will potentially exclude another candidate from the ballot. what about that situation? >> i think we neetoave states in our system where if they follow t processes appropriately, they will take alistic views of what insurrection is under the amendment.

i do not think that this court should take those threads too seriously in its resolution in this ce. >>ouo not think that is a serious that >> i think we have institutions in place. the administrators to enforce the rules, the courts that will review -- that will review. >> justice sotomayor? justice kavanaugh? justicekson? thank you. rebuttal, mr. mitchell?

>> they relyeavily on the authority att gives the gislature of each state to direct the manner of electing. it musbe consistent. there are others. a state cannot instruct it electors only to vote for white candidates. nor can it violate the constituon holng and they cannot use the electorate clause as an excuse to iose additional to go beyond the constitution. the problem wi wt it has done is that they hav changed the criteria section threey

making it a requirement that must be met borthe candidate who is seeking office actually holds the office, essentially moving forward in time. there has still been no and there on how to distinguish t residency cases, where the court of appeals andpping this court's holdingave unanimously disapproved state laws, requiring ngssional candidates to show that they inhabit the state from which they seek election prior to election day. there is still no possible way to distinguish those froth situation below. mr. murray also invoked the consequences that would follow that rejects the nationality and it agrees with stion three as

an offerf the u.s. officers that are appointed made decisions that were invad. th crt did not use any variant to salvage the decision that were made by the officers. there is no way to eapthe conclusion that if they reject the case anal agrees with section three that every executive action taken by the trump administration during his st two weeks in office is vulnerable to attack. if he is reelected and sworn in, any executive action he takes in federal court by anyone who continues to