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      If Trump Is Not an Insurrectionist, What Is He?

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      Last month the states of Colorado and Maine moved to disqualify Donald Trump as a candidate in the 2024 presidential election, citing Section 3 of the 14th Amendment. In response, Trump has asked the Supreme Court to intervene on his behalf in the Colorado case and he has appealed Maine’s decision.There is a real question of whether this attempt to protect American democracy — by removing a would-be authoritarian from the ballot — is itself a threat to American democracy. Will proponents and supporters of the 14th Amendment option effectively destroy the village in order to save it?It may seem obvious, but we should remember that Trump is not an ordinary political figure. And try as some commentators might, there is no amount of smoke one could create — through strained counterfactuals, dire warnings of a slippery slope or outright dismissal of the events that make the Trump of 2024 a figure very different from the Trump of 2020 — that can obscure or occlude this basic fact.In 2020, President Trump went to the voting public of the United States and asked for another four years in office. By 51 percent to 47 percent, the voting public of the United States said no. More important, Trump lost the Electoral College, 306 to 232, meaning there were enough of those voters in just the right states to deny him a second term.The people decided. And Trump said, in so many words, that he didn’t care. What followed, according to the final report of the House Select Committee on Jan. 6, was an effort to overturn the results of the election.Trump, the committee wrote, “unlawfully pressured state officials and legislators to change the results of the election in their states.” He “oversaw an effort to obtain and transmit false electoral certificates to Congress and the National Archives.” He “summoned tens of thousands of supporters to Washington for Jan. 6,” the day Congress was slated to certify the election results, and “instructed them to march to the Capitol” so that they could “‘take back’ their country.’” He even sent a message on Twitter attacking his vice president, Mike Pence, knowing full well that “a violent attack on the Capitol was underway.”In the face of this violence, Trump “refused repeated requests over a multiple hour period that he instruct his violent supporters to disperse and leave the Capitol, and instead watched the violent attack unfold on television.” He did not deploy the National Guard, nor did he “instruct any federal law enforcement agency to assist.”Trump sought and actively tried to subvert constitutional government and overturn the results of the presidential election. And what he could not do through the arcane rules and procedures of the Electoral College, he tried to do through the threat of brute force, carried out by an actual mob.Looked at this way, the case for disqualifying Trump through the 14th Amendment is straightforward. Section 3 states that “No person shall … hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”As the legal scholar Mark A. Graber writes in an amicus brief submitted to the Colorado Supreme Court, “American jurists understood an insurrection against the United States to be an attempt by two or more persons for public reasons to obstruct by force or intimidation the implementation of federal law.” There was also a legal consensus at the time of the amendment’s drafting and ratification that an individual “engaged in insurrection whenever they knowingly incited, assisted or otherwise participated in an insurrection.”We also know that the framers of the 14th Amendment did not aim or intend to exclude the president of the United States from its terms. In 1870, the Republican-controlled Senate refused to seat Zebulon Vance, the former Confederate governor of North Carolina. It strains credulity to think that the same Republicans would have sat silent if the Democratic Party had, in 1872, nominated a former Confederate leader for the presidency.Under a plain reading of Section 3 — and given the evidence uncovered by the Jan. 6 committee — Trump cannot stand for the presidency of the United States or any other federal office, for that matter.The real issue with disqualifying Trump is less constitutional than political. Disqualification, goes the argument, would bring American democracy to the breaking point.In this line of thinking, to deny Americans their choice of presidential candidate would destroy any remaining confidence in the American political system. It would also invite Trump’s allies in the Republican Party to do the same to Democrats, weaponizing Section 3 and disqualifying candidates for any number of reasons. Disqualification would also give far more power to the courts, when the only appropriate venue for the question of Trump is the voting booth.But these objections rest on a poor foundation. They treat Trump as an ordinary candidate and Jan. 6 as a variation on ordinary politics. But as the House select committee established, Jan. 6 and the events leading up to it were nothing of the sort. And while many Americans still contest the meaning of the attack on the Capitol, many Americans also contested, in the wake of the Civil War, the meaning of secession and rebellion. That those Americans viewed Confederate military and political leaders as heroes did not somehow delegitimize the Republican effort to keep them, as much as possible, out of formal political life.What unites Trump with the former secessionists under the disqualification clause is that like them, he refused to listen to the voice of the voting public. He rejected the bedrock principle of democratic life, the peaceful transfer of power.The unspoken assumption behind the idea that Trump should be allowed on the ballot and that the public should have the chance to choose for or against him yet again is that he will respect the voice of the electorate. But we know this isn’t true. It wasn’t true after the 2016 presidential election — when, after winning the Electoral College, he sought to delegitimize the popular vote victory of his opponent as fraud — and it was put into stark relief after the 2020 presidential election.Trump is not simply a candidate who does not believe in the norms, values and institutions we call American democracy — although that is troubling enough. Trump is all that and a former president who used the power of his office to try to overturn constitutional government in the United States.Is it antidemocratic to disqualify Trump for office and deny him a place on the ballot? Does it violate the spirit of democratic life to deny voters the choice of a onetime officeholder who tried, under threat of violence, to deny them their right to choose? Does it threaten the constitutional order to use the clear text of the Constitution to hold a former constitutional officer accountable for his efforts to overturn that order?The answer is no, of course not. There is no rule that says democracies must give endless and unlimited grace to those who used the public trust to conspire, for all the world to see, against them. Voters are free to choose a Republican candidate for president; they are free to choose a Republican with Trump’s politics. But if we take the Constitution seriously, then Trump, by dint of his own actions, should be off the board.Not that he will be. The best odds are that the Supreme Court of the United States will punt the issue of Section 3 in a way that allows Trump to run on every ballot in every state. And while it will be tempting to attribute this outcome to the ideological composition of the court — as well as the fact that Trump appointed three of its nine members — I think it will, if it happens, have as much to do with the zone of exception that exists around the former president.If Trump has a political superpower, it’s that other people believe he has political superpowers. They believe that any effort to hold him accountable will backfire. They believe that he will always ride a wave of backlash to victory. They believe that challenging him on anything other than his terms will leave him stronger than ever.Most of this is false. But to the extent that it is true, it has less to do with the missed shots — to borrow an aphorism from professional sports — than it does with the ones not taken in the first place.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Instagram, TikTok, X and Threads. More

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      The Supreme Court and Donald Trump

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      More from our inbox:A Push Away From Political Despair‘The Real Battle for American Education’Dinners With ChurchillLeah Millis/ReutersTo the Editor:Re “Barring Trump From the Ballot Would Be a Mistake,” by Samuel Moyn (Opinion guest essay, Dec. 24):Despite the vast difference in our academic credentials (me: B.A. from Miami University, Professor Moyn: J.D. from Harvard), I dispute the author’s conclusion that American democracy will suffer if the U.S. Supreme Court upholds the decision of the Colorado Supreme Court to bar Donald Trump from the primary ballot in that state.Professor Moyn cites the fact that many Americans dispute Mr. Trump’s culpability in inciting the riot of Jan. 6, and states that barring him from the ballot will incite more violence. But Mr. Trump’s rhetoric urging followers to “fight like hell” that day is construed by all but the most rabid MAGA supporters as clear incitement and should disqualify him. If Mr. Trump is not punished, how can we expect any disgruntled election loser to graciously accept defeat?The court, Professor Moyn asserts, should pay attention to public opinion when crafting a decision. The court did not, however, pay the slightest bit of attention to public opinion when it overturned Roe v. Wade or when it struck down the New York State law enacting strict gun control measures.I believe the court will overturn the Colorado decision, not because it is the proper legal action, but because the court has devolved into a partisan political body fraught with corruption, a majority of whose members would like to see Mr. Trump back in office. Most Americans, according to some opinion polls, agree with me.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More

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      True-Crime Podcasts About Trump Are Everywhere

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      MSNBC, NPR, Vox Media and The Atlanta Journal-Constitution are all aiming to capitalize on interest in the criminal cases against President Donald J. Trump with the shows.True crime is among the most popular genres in podcasting. One of the biggest stories in the coming months is the wave of criminal charges facing former President Donald J. Trump.The result: a boomlet of podcasts dedicated to the criminal cases against him.MSNBC, The Atlanta Journal-Constitution, NPR, Vox Media and The First TV, an upstart conservative media company, have all introduced or are about to start new shows examining Mr. Trump’s courtroom travails as he campaigns to win back the White House.On MSNBC’s “Prosecuting Donald Trump,” the legal commentators Andrew Weissmann and Mary McCord offer analysis gleaned from their years serving as prosecutors. A recent episode of “Breakdown,” from The Atlanta Journal-Constitution, includes a newsy interview with Fani Willis, the Fulton County district attorney. Recently on “Trump’s Trials,” the NPR host Scott Detrow discussed whether Mr. Trump could claim presidential immunity.The criminal charges against Mr. Trump — brought by state prosecutors in New York and Georgia, as well as in two federal indictments — involve allegations of election interference, his role in the Jan. 6 attack at the U.S. Capitol, his handling of sensitive documents and payments to cover up a sex scandal. Mr. Trump denies any wrongdoing.Many of the hosts interviewed by The New York Times cited the newsworthiness of the story — a former president and a leading candidate for the office is facing a legal onslaught while battling for the White House — as the impetus to go wall to wall with dedicated podcasts.“He is the far and away front-runner to the nomination and has a real chance of being president again,” Mr. Detrow said. “That, to me, is an enormous legal story, an enormous political story.”But there is a significant potential economic upside as well: capturing a slice of the $2.4 billion that advertisers are expected to spend on podcasts in 2024, according to the data firm eMarketer. For years, news organizations have benefited financially from the public’s interest in Mr. Trump — colloquially known as the “Trump bump.”“The number of users is up, but the number of people vying for those users in terms of dollars is also way up,” said Chris Balfe, founder of The First TV.Mr. Trump’s legal challenges present an unusual twist on the true-crime genre, which often focuses on grisly murders or dramatic heists. “Serial,” a podcast from the creators of “This American Life,” was a pioneer of the category, which has also included entrants like “Exit Scam” (about a vanished cryptocurrency mogul) and “Last Seen,” a suspenseful yarn about the theft of 13 irreplaceable artworks from the Isabella Stewart Gardner Museum in Boston. (The New York Times Company now owns Serial Productions, maker of “Serial.”)The Trump cases, by contrast, involve complicated questions about the Constitution and democracy. Adding to the complexity: They span state and federal jurisdictions in Florida, Georgia, New York and Washington, D.C.Podcasts are an ideal format to explain the nuances to the public, because they give journalists the time and space to examine complicated issues at length, Mr. Balfe said. They also allow news organizations to create a listener destination for coverage quickly and relatively inexpensively, with two mics and a simple distribution feed for Spotify and Apple Podcasts, he said.“You don’t have to go lease a beautiful studio on Sixth Avenue and hire a crew and all this other stuff,” Mr. Balfe said. “A podcast is a low-floor, high-ceiling way to start a new product. And if it works, it can be very successful, very quickly.”Last year, The Atlanta Journal-Constitution, the largest newspaper in Georgia, dedicated the latest season of its true-crime podcast, “Breakdown,” to the criminal investigation. Since then, it has been all Trump, all the time, with 22 episodes on the topic since August.This year, the podcast garnered more than one million downloads, making it the newspaper’s most popular, finding audiences in Florida, California and New York, according to a spokeswoman for The Atlanta Journal-Constitution.The newspaper also has three full-time reporters covering Mr. Trump’s case in Fulton County, where he faces 13 felony charges, including racketeering.Tamar Hallerman, one of those reporters, co-anchors the podcast. She describes herself as a “recovering Washington correspondent.” (She was previously a reporter at Roll Call.)The Atlanta Journal-Constitution, the largest newspaper in Georgia, dedicated its latest season of its true-crime podcast, “Breakdown,” to the Trump criminal investigation.Wulf Bradley for The New York Times“All of these legal cases that Trump is in the middle of are already creating a unique set of circumstances for a leading presidential candidate,” said Ms. Hallerman, who covered the 2016 presidential campaign. “This is absolutely not business as usual for the campaign press corps.”Preet Bharara, a former U.S. attorney for the Southern District of New York, has dedicated much of one of his three podcasts for Vox Media to the criminal investigations facing Mr. Trump. Mr. Bharara has covered Mr. Trump’s legal issues since 2018, saying, “There’s really been no shortage of legal-based news.”Yet “the dam broke” in April, he said, after Alvin L. Bragg, the Manhattan district attorney, brought the first criminal charges against Mr. Trump.“Every month or two, there was another one,” Mr. Bharara said. “And it became clear that that was going to be a central focus.”Political coverage of Mr. Trump should focus on the criminal investigations into the former president, rather than traditional horse-race coverage, said Timothy Crouse, whose 1973 book, “The Boys on the Bus,” about the media’s coverage of the previous year’s presidential campaign, became a classic of the genre.Investigative reporters like Bob Woodward and Carl Bernstein, not campaign reporters, did the most enduring political journalism of that era, Mr. Crouse said. At the time, many campaign reporters were skeptical of those stories. He added that sustained exploration of Mr. Trump’s criminal charges would probably follow the same pattern.“Fewer political reporters might be OK, but only if that decrease were to be balanced by an increase in investigative reporters,” Mr. Crouse said. More

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      The Supreme Court’s Big Trump Test Is Here

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      A generation after the Supreme Court stepped into a disputed presidential election, America is experiencing a creeping sense of déjà vu. Twenty-three years ago, a bare majority of the justices halted a recount in Florida, effectively handing the presidency to George W. Bush.The specter of Bush v. Gore, the case that stands as a marker of how not to resolve searing political disputes, looms large as the Supreme Court is being called upon to address controversies with profound implications for the fortunes of the Republican front-runner in 2024.The justices are feeling the heat nearly a year in advance of an election rather than in the fraught weeks following the vote. The questions today are more complex — there are at least three separate matters, not one — and all revolve around the Capitol insurrection that transpired across the street from the Supreme Court Building in 2021.On Friday, the court turned down Special Counsel Jack Smith’s request for fast-track review of Donald Trump’s claim that former presidents have “absolute immunity” from criminal prosecution for their conduct while in office. But that critical question will almost certainly return to the Supreme Court soon: The D.C. federal appeals court is hearing the case on Jan. 9 and will probably rule shortly thereafter.The court has agreed to hear a case asking whether Jan. 6 rioters can be charged with obstructing an official proceeding, another key part of Mr. Smith’s Jan. 6 case against Mr. Trump. And most dramatically, the former president will surely ask the justices to reverse a ruling of the Colorado Supreme Court that, if affirmed, could pave the way for an untold number of states to erase his name from the ballot.For a tribunal that is supposed to sit far away from, not astride, politics, that’s a lot for the Supreme Court to handle. And this is happening at a rough moment for the court. In August 2000, on the eve of Bush v. Gore, 62 percent of Americans approved of how the Supreme Court was conducting itself. Now, recent polling shows that nearly that portion (58 percent) disapproves of the institution, a figure that scrapes historic lows for the court.Yet the multiplicity of cases affords the justices an opportunity to avoid pinning themselves in still further if they keep an eye on how potential decisions will — collectively — shape the political landscape. The point is not that getting the underlying legal questions “right” is irrelevant. But when the stakes are this high and the legal questions are novel, the justices have a duty to hand down decisions that resonate across the political spectrum — or at least that avoid inciting violence in the streets. That’s not subverting the rule of law; it’s preserving it.Extraordinary times call for a court that embraces the art of judicial statecraft.The trap the court finds itself in is largely a function of its own behavior, both on and off the bench. The 6-to-3 conservative supermajority has radically expanded gun rights, circumscribed the Environmental Protection Agency’s ability to protect the environment, all but eviscerated race-based affirmative action, punched holes through the wall separating church from state and — most notoriously — eliminated the constitutional right to abortion. The past year has also seen increasing public scrutiny of the justices’ apparent ethical lapses, sunlight that pushed the justices to adopt their first code of ethics.A universe in which the court somehow splits the difference — for example, keeping Mr. Trump on the ballot while refusing to endorse (if not affirmatively repudiating) his conduct and spurning his kinglike claim to total immunity — could go a long way toward reducing the temperature of the coming election cycle. Such an outcome could also help restore at least some of the court’s credibility.We understand that trying too hard to project an image of nonpartisanship carries risks. Recent reporting on the twists and turns of how the conservative majority engineered the end of Roe v. Wade shows how curating rulings can make justices look too clever by half — if not outright deceptive. Delaying the grant of review in the Dobbs v. Jackson Women’s Health Organization case, in which some of the conservative justices apparently knew they had the votes to overrule Roe, created a false impression that the court was struggling over the matter — when the reality was anything but. Indeed, the Dobbs experience and its aftermath might have led some justices to sour on the idea of judicial statecraft — especially if their internal deliberations end up getting leaked to the press. No jurist wants to be seen as a cunning manipulator of public opinion.And yet, some of the court’s most important rulings across its history have represented just the kind of high constitutional politics that we believe are called for now. The court’s recognition of its power to strike down acts of Congress in Marbury v. Madison came in a context in which the direct effect of the ruling was to restrain the court while slapping the Jefferson administration on the wrist.Its concerted effort to produce unanimous opinions in some of the landmark civil rights cases of the 1950s and 1960s reflected a view that speaking in one voice was more important than the legal nuances of what was said. (This, perhaps, is why no justice publicly dissented from Friday’s decision not to fast-track the immunity question.)The court’s landmark rejection of President Richard Nixon’s executive privilege claim in the Watergate tapes case, which helped to directly precipitate Nixon’s resignation, came in a unanimous opinion written by Nixon’s handpicked chief justice.This is also the best way to understand Chief Justice John Roberts’s much-maligned 2012 vote in the first serious challenge to the Affordable Care Act — upholding the individual mandate as a tax while rejecting it as a valid regulation of interstate commerce.What those (and other) rulings have in common was the sense, across the Supreme Court, that the country would be better off with a court that took appropriate measure of how its rulings would be received beyond the details of the legal analysis the justices provided.The court failed that test in Bush v. Gore — handing down a ruling widely perceived as Republican-appointed justices installing a Republican president via a strained (and oddly cabined) reading of the Equal Protection Clause and helping to precipitate the downturn in public opinion that figures so prominently in these cases.As the Jan. 6 cases put the justices right in the middle of the 2024 election, the question is whether they’ll understand the imperative of not letting history repeat.Ultimately, these contemporary disputes may not provide a perfect opportunity for the Supreme Court to right that wrong. But if one thing’s for certain, it’s that neither the court nor the country can afford another election-altering ruling that takes such obvious partisan sides.Steven V. Mazie (@stevenmazie) is the author of “American Justice 2015: The Dramatic Tenth Term of the Roberts Court” and is the Supreme Court correspondent for The Economist. Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, writes the One First weekly Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Instagram, TikTok, X and Threads. More

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      New Trump Cases Shadowed by Rocky Relationship With Supreme Court

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      Though he appointed three justices, his administration had the worst track record before the justices since at least the 1930s.“I’m not happy with the Supreme Court,” President Donald J. Trump said on Jan. 6, 2021. “They love to rule against me.”His assessment of the court, in a speech delivered outside the White House urging his supporters to march on the Capitol, had a substantial element of truth in it.Other parts of the speech were laced with fury and lies, and the Colorado Supreme Court cited some of those passages on Tuesday as evidence that Mr. Trump has engaged in insurrection and was ineligible to hold office again.But Mr. Trump’s reflections on the U.S. Supreme Court in the speech, freighted with grievance and accusations of disloyalty, captured not only his perspective but also an inescapable reality. A fundamentally conservative court, with a six-justice majority of Republican appointees that includes three named by Mr. Trump himself, has not been particularly receptive to his arguments.Indeed, the Trump administration had the worst Supreme Court record of any since at least the Roosevelt administration, according to data developed by Lee Epstein and Rebecca L. Brown, law professors at the University of Southern California, for an article in Presidential Studies Quarterly.“Whether Trump’s poor performance speaks to the court’s view of him and his administration or to the justices’ increasing willingness to check executive authority, we can’t say,” the two professors wrote in an email. “Either way, though, the data suggest a bumpy road for Trump in cases implicating presidential power.”Now another series of Trump cases are at the court or on its threshold: one on whether he enjoys absolute immunity from prosecution, another on the viability of a central charge in the federal election-interference case and the third, from Colorado, on whether he was barred from another term under the 14th Amendment.The cases pose distinct legal questions, but earlier decisions suggest they could divide the court’s conservative wing along a surprising fault line: Mr. Trump’s appointees have been less likely to vote for him in some politically charged cases than Justice Clarence Thomas, who was appointed by the first President Bush, and Justice Samuel A. Alito Jr., who was appointed by the second one.In his speech at the Ellipse on Jan. 6, Mr. Trump spoke ruefully about his three appointees: Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, suggesting that they had betrayed him to establish their independence.“I picked three people,” he said. “I fought like hell for them.”In a speech at the Ellipse on Jan. 6, 2021, Mr. Trump spoke ruefully about his three appointees and suggested that they had betrayed him to establish their independence.Pete Marovich for The New York TimesMr. Trump said his nominees had abandoned him, blaming his losses on the justices’ eagerness to participate in Washington social life and to assert their independence from the charge that “they’re my puppets.”He added: “And now the only way they can get out of that because they hate that it’s not good in the social circuit. And the only way they get out is to rule against Trump. So let’s rule against Trump. And they do that.”Mr. Trump has criticized Chief Justice John G. Roberts Jr. on similar grounds. When the chief justice cast the decisive vote to save the Affordable Care Act in 2012, Mr. Trump wrote on Twitter that “I guess @JusticeRoberts wanted to be a part of Georgetown society more than anyone knew,” citing a fake handle. During his presidential campaign, Mr. Trump called the chief justice “an absolute disaster.”When he spoke on Jan. 6, Mr. Trump was probably thinking of the stinging loss the Supreme Court had just handed him weeks before, rejecting a lawsuit by Texas that had asked the court to throw out the election results in four battleground states.Before the ruling, Mr. Trump said he expected to prevail in the Supreme Court, after rushing Justice Barrett onto the court in October 2020 in part in the hope that she would vote in Mr. Trump’s favor in election disputes.“I think this will end up in the Supreme Court,” Mr. Trump said of the election a few days after Justice Ruth Bader Ginsburg’s death that September. “And I think it’s very important that we have nine justices.”After the ruling, Mr. Trump weighed in on Twitter. “The Supreme Court really let us down,” he said. “No Wisdom, No Courage!”The ruling in the Texas case was not quite unanimous. Justice Alito, joined by Justice Thomas, issued a brief statement on a technical point.Those same two justices were the only dissenters in a pair of cases in 2020 on access to Mr. Trump’s tax and business records, which had been sought by a New York prosecutor and a House committee.The general trend continued after Mr. Trump left office. In 2022, the court refused to block the release of White House records concerning the Jan. 6 attack on the Capitol, effectively rejecting Mr. Trump’s claim of executive privilege. The court’s order let stand an appeals court ruling that Mr. Trump’s desire to maintain the confidentiality of internal White House communications was outweighed by the need for a full accounting of the attack and the disruption of the certification of the 2020 electoral count.Only Justice Thomas noted a dissent. His participation in the case, despite his wife Virginia Thomas’s own efforts to overturn the election, drew harsh criticism.Mr. Trump’s rocky record at the court offers only hints about how the justices will approach the cases already before them and on the horizon. His claim of absolute immunity appears vulnerable, based on other decisions from the court on the scope of presidential power.The case examining one of the federal statutes relied on by the special counsel in the federal election-interference case, which makes it a crime to corruptly obstruct an official proceeding, does not directly involve Mr. Trump, though the court’s ruling could undermine two of the charges against him.Mr. Trump’s rocky record at the court offers only hints about how the justices will approach the cases already before them and on the horizon.Erin Schaff/The New York TimesThe justices have been skeptical of broad interpretations of federal criminal laws, and the arguments in the case will doubtless involve close parsing of the statute’s text.The case that is hardest to assess is the one from Colorado, involving as it does a host of novel questions about the meaning of an almost entirely untested clause of the 14th Amendment, one that could bar Mr. Trump from the presidency. The case is not yet at the Supreme Court, but it is almost certain to arrive in the coming days.Guy-Uriel E. Charles, a law professor at Harvard, said the justices would have to act.“The Supreme Court is a contested entity, but it is the only institution that can weigh in and try to address this problem, which needs a national resolution,” he said. “There has been some loss of faith in the court, but even people who are deeply antagonistic to it believe it needs to step in.” More

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      Biden Says It’s ‘Self-Evident’ That Trump Supported an Insurrection

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      But President Biden said the courts must decide if former President Donald J. Trump should be on the ballot in 2024.President Biden said on Wednesday that it was “self-evident” that former President Donald J. Trump had supported an insurrection on Jan. 6, 2021, but that the courts would decide whether he should be on the ballot in 2024.The president was responding to a reporter’s question about the Colorado Supreme Court decision on Tuesday that said that Mr. Trump was disqualified from being on the 2024 ballot in the state’s Republican primary because he was part of an insurrection.“Not going to comment on it,” Mr. Biden said after landing in Milwaukee for a speech to the Wisconsin Black Chamber of Commerce.And then he did.“It’s self-evident. You saw it all,” Mr. Biden said, adding that it would be up to the court to decide whether Mr. Trump was in violation of the 14th Amendment, which says that acts of insurrection can disqualify someone from office.“But he certainly supported an insurrection,” Mr. Biden said. “No question about it. None. Zero.”Mr. Biden typically steers clear of talking about Mr. Trump’s legal culpability or any of the federal charges pending against him.Mr. Trump has denied that he incited the Jan. 6 riot. His campaign said it would appeal Tuesday’s decision, which applies only to Colorado, to the U.S. Supreme Court. But the court could end up answering the question for all 50 states.Mr. Trump has been the Republican front-runner for the nomination for months, despite the long list of criminal charges he faces in multiple investigations.On Wednesday, Mr. Trump called the indictments against him “political” and “fake.”The Supreme Court recently agreed to hear a case that could complicate and delay the election interference case against him in Washington. More

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      Colorado Supreme Court Was Narrowly Split on Barring Trump From Ballot

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      The 4-3 decision was harshly criticized by Trump supporters, who called it undemocratic. But some observers say the court is notably nonpartisan. The Colorado Supreme Court, which barred former President Donald J. Trump from the state’s primary ballot, is composed of seven justices who were all appointed by Democratic governors.Justices on the court serve 10-year terms, and Democrats have held the governor’s office for the last 16 years, so all of the current justices were appointed by that party, with five appointed by one man: John Hickenlooper, who was governor from 2011 to 2019 and is now one of the state’s U.S. senators.Still, the chief justice, Brian Boatright, is a Republican, while three justices are Democrats and three are listed in voter registration records as “unaffiliated” with a party. And the court was not of one mind on whether Mr. Trump should appear on the ballot. The decision was 4-3, with the court ruling that the 14th Amendment forbade Mr. Trump from holding office because he had “engaged in insurrection” on Jan. 6, 2021, when his supporters overran the Capitol. (Of the four who voted with the majority, two are registered Democrats and two are not registered with a party.)The decision was harshly criticized by supporters of Mr. Trump, who said that keeping him off the ballot was undemocratic. The head of Colorado’s Republican Party, Dave Williams, said “out-of-control radicals” in Colorado “would rather spit on our Constitution than let the people decide which candidates should represent them in a free and fair election.”But some observers of the court say that it is notably nonpartisan, in part because of how the justices are named. The governor must choose from a pool of nominees recommended by a bipartisan commission. The majority of the members on that commission are not lawyers. Still, most are chosen by the governor.The decision was harshly criticized by supporters of Mr. Trump, who said that keeping him off the ballot was undemocratic.Max Whittaker for The New York Times“It’s perceived to be way less political than the U.S. Supreme Court, and I think it’s true that it’s way less political,” said Chris Jackson, a lawyer in Denver whose practice includes election law. “There aren’t really conservative and liberal justices in the way that we describe the U.S. Supreme Court justices.”The decision on Trump on Tuesday was not the first time the court has removed a political candidate from the ballot. In 2020, it ruled that a Democratic U.S. Senate candidate, Michelle Ferrigno Warren, could not appear on the primary ballot because she had not collected enough signatures from voters. A lower court had been more lenient, citing the Covid-19 pandemic, but the state’s highest court disagreed.Two years earlier, in 2018, the court removed a Republican candidate from a ballot. It found that Representative Doug Lamborn, a longtime congressman from Colorado Springs, had not collected enough valid voter signatures to be on the ballot. In that case, however, a federal court disagreed and eventually reinstated Mr. Lamborn, who won the election.Mr. Lamborn said in a statement that he hoped Mr. Trump would have similar success in the U.S. Supreme Court.Brian Boatright, the chief justice, in December. Pool photo by David Zalubowski“This wrongful decision was made by the same court that unconstitutionally removed my name from the ballot years ago & had to be corrected by a federal court,” Mr. Lamborn wrote on the social media platform X. Like the U.S. Supreme Court, the Colorado Supreme Court can choose whether to hear cases that are appealed to it, and, in some of the state’s biggest recent cases, the Colorado high court has declined. That was true in two cases in which the U.S. Supreme Court eventually weighed in: Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which that court sided in 2018 with a baker who had refused to make a wedding cake for a gay couple, and a case this year, Counterman v. Colorado, in which the high court said that the First Amendment put limits on laws banning online threats.Doug Spencer, a law professor at the University of Colorado, said the state’s high court appeared, in its Trump decision, to try to walk a tight line. It had ruled to remove Mr. Trump from the ballot but put a pause on its own ruling. If the case is appealed to the U.S. Supreme Court, as is expected, then Mr. Trump’s name would, under the state court’s order, remain on the ballot until the Supreme Court decides the case. But the Colorado secretary of state said on Tuesday that she would follow whatever court order is in place on Jan. 5, when the state must certify ballots for the primary election.In staying its own decision until the Supreme Court weighs in, Professor Spencer said, the state court had “teed it up in just the right way” to be decided by the nation’s top court.He added: “They’re very thorough in terms of explaining themselves, whether or not you agree with them.”Susan C. Beachy More

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      Trump Cases Crashing Into Supreme Court Could Reshape 2024 Election

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      The ruling that Donald Trump is not eligible for the ballot in Colorado is the latest election-related issue likely to land before the justices. The implications for 2024 could be profound.It has been obvious for months that politics and the law were going to bump into one another in the 2024 campaign, given the double role that former President Donald J. Trump has been playing as a criminal defendant and leading Republican candidate.But in a way that few expected, that awkward bump has turned into a head-on collision. It now seems clear that the courts — especially the Supreme Court — could dramatically shape the contours of the election.The nine justices have already agreed to review the scope of an obstruction statute central to the federal indictment accusing Mr. Trump of plotting to overturn the 2020 election. And they could soon become entangled in both his efforts to dismiss those charges with sweeping claims of executive immunity and in a bid to rid himself of a gag order restricting his attacks on Jack Smith, the special counsel in charge of the case.The court could also be called upon to weigh in on a series of civil lawsuits seeking to hold Mr. Trump accountable for the violence at the Capitol on Jan. 6, 2021.And in the latest turn of events, the justices now seem poised to decide a novel and momentous legal question: whether Mr. Trump should be disqualified from state ballots for engaging in an insurrection on Jan. 6 in violation of a Reconstruction-era constitutional amendment.Taking up just one of these cases would place the Supreme Court — with a conservative majority bolstered by three Trump appointees — in a particular political spotlight that it has not felt in the 23 years since it decided Bush v. Gore and cemented the winner of the 2000 presidential race.But a number of the issues the court is now confronting could drastically affect the timing of the proceedings against Mr. Trump, the scope of the charges he should face or his status as a candidate, with potentially profound effects on his chances of winning the election. And the justices could easily become ensnared in several of the questions simultaneously.“In this cycle, the Supreme Court is likely to play an even larger role than in Bush v. Gore,” said David Becker, executive director of the Center for Election Innovation and Research, a nonpartisan group dedicated to improving election administration.“It’s not just the issue of whether or not Donald Trump engaged in insurrection, which would disqualify him from holding the presidency under the 14th Amendment,” Mr. Becker said, “but also issues related to presidential immunity and criminal proceedings in general.”All of this arrives at a particularly vulnerable moment for the court. In the wake of its decisions on contentious issues like abortion rights and affirmative action, critics have assailed it for being guided by an overt political ideology.At the same time, some of the justices have come under withering personal scrutiny for their finances and links to wealthy backers. And given that Mr. Trump has at times expressed surprise that the justices he put on the bench have not been more attuned to his interests, any decisions by the court that favor him are sure to draw intense criticism.“Most of the justices would surely prefer the court to keep a low profile in the 2024 presidential election,” said Richard H. Pildes, a law professor at New York University.“In a highly polarized, social media-fueled political culture,” he said, “the justices know that nearly half the country is likely to view the court as having acted illegitimately if the court rules against their preferred candidate.”But while the court’s current majority has certainly favored any number of staunchly conservative policies, it has shown less of an appetite for supporting Mr. Trump’s attempts to bend the powers of the presidency to his benefit or to interfere with the mechanics of the democratic process.The justices largely ignored the slew of lawsuits that he and his allies filed in lower courts across the country three years ago seeking to overturn the last election. They also rejected out of hand a last-minute petition from the state of Texas to toss out the election results in four key battleground states that Mr. Trump had lost.None of this, of course, is a guarantee of how the court might act on the issues it is facing this time.Even a decision by the Supreme Court to move slowly in considering the issues heading its way could have major ramifications, especially the question of whether Mr. Trump is immune from prosecution for actions he took as president. If that issue gets tied up in the courts for months, it could make it harder to schedule his trial on charges of trying to overturn the 2020 election before the general election season starting in the summer — and could even delay it until after Election Day.In fact, there are so many moving parts in the overlapping cases that Mr. Trump is facing that it is all but impossible to predict which issues might get taken up, how the justices will rule on the questions they consider and what effects their decisions might have as they flow downstream to the lower courts that are handling the former president’s four criminal cases and his many civil proceedings.It is important to remember something else: Mr. Trump is interested in more than winning arguments in court. From the start, he and his lawyers have pursued a parallel strategy of trying to delay his cases for as long as possible — ideally until after the election is decided.If he can succeed in such a delay and win the race, he would have the power to simply order the federal charges he is facing to be dropped. Regaining the White House would also complicate the efforts of local prosecutors to hold him accountable for crimes.The courts have shown that they, too, are aware that timing is an issue in Mr. Trump’s cases. Judges are normally loath to set the pace of proceedings based on outside pressures, but in the cases involving Mr. Trump the courts have found themselves in an unusual bind.Setting too aggressive a schedule could impinge on the rights of the defendant to have sufficient time to prepare for a complex trial. But to move too slowly would be to risk depriving voters of the knowledge they would glean from a trial before Election Day and give Mr. Trump, were he to win the election, the chance to kill the prosecutions or put them on hold for years.“It’s all extremely awkward,” said Alan Rozenshtein, a former Justice Department official who teaches at the University of Minnesota Law School.Having the courts so enmeshed in Mr. Trump’s legal and political future has opened up the question of just how much ordinary people, not judges, will get to decide what happens at the polls next year. It has also left unresolved the degree to which judicial decisions will affect whether voters are able to hear the evidence that prosecutors have painstakingly collected about Mr. Trump’s alleged crimes before they render a decision about whether to re-elect him.Some election law specialists said the courts should generally defer to voters and not interfere in the choices they can make.“My view is that Trump is a political problem, and the appropriate response is politics,” said Tabatha Abu El-Haj, a law professor at Drexel University.But Edward B. Foley, a law professor at Ohio State University, said that elections must be governed by legal principles.“It’s commonplace to think that voters, not courts, should determine who’s elected president,” he said. “But it’s also essential to remember that the law, including court rulings, structures the electoral choices voters face when they cast their ballot.”Adam Liptak More