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      When Will Trump Stand Trial? Supreme Court Order May Help Him Delay.

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      The former president’s claim that he is immune from prosecution will now be taken up by a federal appeals court — and could end up back in front of the justices within weeks.The Supreme Court’s decision on Friday not to fast-track consideration of former President Donald J. Trump’s claim that he is immune to prosecution on charges of plotting to overturn the 2020 election was unquestionably a victory for Mr. Trump and his lawyers.The choice by the justices not to take up the issue now — rendered without explanation — gave a boost to the former president’s legal strategy of delaying the proceedings as much as possible in the hopes of running out the clock before Election Day.It is not clear, however, that the decision holds any clues to what the Supreme Court might think of the substance of his immunity claim. And the degree to which it pushes off Mr. Trump’s trial will only be determined in coming weeks as the clash over whether he can be prosecuted plays out in the federal appeals court in Washington — and then perhaps makes its way right back to the justices.How the Supreme Court handles the case at that point could still have profound implications, both for whether the federal election interference indictment will stand and for whether Mr. Trump might succeed in pushing a trial past the election. At that point, if he wins the presidency, he could order the charges to be dropped.Here is a look at what’s ahead.What issue is Mr. Trump appealing?Mr. Trump is attempting to get the entire indictment against him tossed out with an argument that has never before been tested by the courts — largely because no one else has ever made it this way. He is claiming that he is absolutely immune to criminal prosecution on the charges of election interference because they stem from acts he took while he was in the White House.Judge Tanya S. Chutkan, who is handling the underlying case in Federal District Court in Washington, rejected that claim earlier this month in a decision that found there was nothing in the Constitution or American history supporting the idea that the holder of the nation’s highest position, once out of office, should not be subject to the federal criminal law like everybody else.Mr. Trump appealed the decision to the first court above Judge Chutkan’s: the U.S. Court of Appeals for the District of Columbia Circuit.But fearing that a protracted appeal could delay the case from going to trial as scheduled in March, Jack Smith, the special counsel who filed the indictment, made an unusual request to the Supreme Court: He asked the justices to step in front of the appeals court and consider the case first to speed up the process and preserve the current trial date.On Friday, in a one-sentence order, the Supreme Court turned down Mr. Smith’s request.Where will the case be heard now?The appeals court in Washington will hear the immunity matter. In fact, the court will do so on a schedule that is extremely accelerated by judicial standards.A three-judge panel of the court — made up of one judge named by President George H.W. Bush and two appointed by President Biden — has ordered all of the briefs in the case to be turned in by Jan. 2. It has set a hearing for oral arguments on Jan. 9.In a sign of how quickly the panel is moving, the judges told Mr. Trump’s lawyers to turn in their first round of court papers on Saturday, two days before Christmas. Mr. Smith’s team has been ordered to submit its own papers on the following Saturday, the day before New Year’s Eve.What happens after the appeals court rules?If the appeals court decides in Mr. Trump’s favor, Mr. Smith’s office would almost certainly challenge the loss in front of the Supreme Court, assuming the justices agreed to hear it.But the more likely scenario is that the three appellate judges rule against Mr. Trump, rejecting his claims of immunity.At that point, he could seek to have the entire circuit court hear the appeal — a move that, if nothing else, would eat up more time. If the full court declined to take the case or ruled against him, he would likely ask the Supreme Court to step in for the second time.What happens if it goes back to the Supreme Court?In theory, the Supreme Court could decline to take up the immunity matter if Mr. Trump loses and simply let the appeals court ruling stand. That option could be appealing to the justices if they want to avoid stepping directly into a highly charged political issue — just one of several they are likely to confront in coming months that could have a bearing on Mr. Trump’s chances of reclaiming the White House.Were that to happen, the case would go back to Judge Chutkan and she would set a new date for trial. Her handling of the case so far suggests that she would move the proceedings along at a rapid clip.If, however, the Supreme Court were to take the case, the justices would have to make another critical decision: how fast to hear it. It is possible they could consider the case quickly and return a ruling on the immunity issue by — or even well before — the end of their current term in June.But Mr. Smith has expressed concern in filings to the court that the justices might not be able to complete their work before the end of this term. If they do not, the case would drag into the next term, which does not get underway until October, too late to resolve before Election Day.What does all of this mean for the start of the trial?If the appeals court returns a quick decision against Mr. Trump and the Supreme Court lets that decision stand, the trial might be delayed, but perhaps only by a matter of weeks. Under this scenario, it is conceivable that the case could go in front of a jury by April or May, well before the heart of the campaign season.If the Supreme Court takes the case and hears it on a fast-tracked schedule, the trial could be delayed for somewhat longer — perhaps by a matter of months. That would mean a trial could be held over the summer, a fraught possibility given that the Republican nominating convention is in July and that Mr. Trump, assuming he is the party’s nominee, could be kept from doing much traditional campaigning for the duration of the trial.But if the Supreme Court takes the case and follows a leisurely pace in considering it, there might not be a trial at all before the general election in November. In that case, voters would not have the chance to hear the evidence in the case against Mr. Trump before making their choice — and a President Trump could choose to make sure they do not get the chance after the election either. 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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      Principles at Stake in Push to Disqualify Trump: Will of Voters and Rule of Law

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      If the Colorado Supreme Court is right that the former president is constitutionally ineligible to run for president, fundamental values are in severe tension.The Colorado Supreme Court’s ruling that Donald J. Trump is constitutionally ineligible to run for president again pits one fundamental value against another: giving voters in a democracy the right to pick their leaders versus ensuring that no one is above the law.Mr. Trump’s status as the Republican front-runner for the presidential nomination, despite his role in the events that culminated in the attack on the Capitol on Jan. 6, 2021, has created severe tensions between those two principles. If the court’s legal reasoning is correct, obeying the rule of law produces an antidemocratic result.That constitutional and political dilemma is likely to land before the U.S. Supreme Court. And while Mr. Trump’s name would stay on the primary ballot as the justices weighed the matter, their decision would have consequences far beyond his opportunity to win Colorado’s 10 Electoral College votes.For one, similar legal challenges to Mr. Trump’s eligibility are pending in at least 16 additional states. Moreover, the precedent the case will set could open or shut the door to the risk that partisans will routinely turn to state courts to try to keep major federal candidates off the ballot.Supreme Court justices have life tenure in the hope that their work will be independent of political influence, and, under the principle of the rule of law, it would be illegitimate for them to torque their interpretation of the Constitution with an eye toward political consequences. Under the rule of law, the Constitution and federal statutes apply equally to everybody, and no one’s power, wealth, political influence or other special status puts him or her above the law.But under the principle of democracy, the government’s legitimacy stems from the fact that voters decided whom to put in charge. The prospect of unelected judges denying voters the opportunity to make their own decision about Mr. Trump’s political future has given pause even to some of his critics who fervently hope Americans will reject him at the ballot box.Stephen I. Vladeck, a law professor at the University of Texas at Austin, said that even if one thinks that Mr. Trump’s actions rendered him unfit for office in line with the 14th Amendment, there are other — and less alarmingly novel — systems that could have addressed that problem before it reached the courts. These would have freed the Republican Party to have a starkly different primary contest, he said.“The problem is that we’re just not set up for this — we’ve run through the safety nets,” Mr. Vladeck said. “We’ve been spared from this problem in the few prior episodes where it could have arisen by different sets of constraints. And so now we’re in this position because those backstops have failed.”Had nine more Republican senators voted to convict Mr. Trump at his Jan. 6 impeachment trial, he would be ineligible to hold future office anyway, said Mr. Vladeck, who wrote a column about the complications of the Colorado court’s ruling titled “The Law and High Politics of Disqualifying President Trump.” And if more Republican voters were repelled by Mr. Trump’s attempt to secure an unelected second term, his political career would be over as a practical matter.The legal dispute turns on a clause of the 14th Amendment, which was added to the Constitution after the Civil War. Its third section says that people who betrayed their government oaths by engaging in an insurrection are ineligible to hold office. Citing Mr. Trump’s actions surrounding the Jan. 6. riot, the Colorado Supreme Court ruled on Tuesday that he was an oath-breaking insurrectionist whose name could not lawfully appear on the ballot.Colorado’s Supreme Court ruled on Tuesday that the former president was disqualified from holding office again.Stephen Speranza for The New York Times“If the language is clear and unambiguous, then we enforce it as written,” a four-justice majority wrote.But even if a majority of justices on the U.S. Supreme Court privately agree that the disqualification clause, by its plain text, seems clearly to bar Mr. Trump from returning to government power, it will not be surprising if they hesitate at the prospect of issuing a ruling affirming the Colorado court’s decision.If the justices want to overturn the Colorado ruling, they will have numerous potential offramps. Mr. Trump’s lawyers will have technical arguments, like whether the clause in question has legal force by itself or whether Congress would first need to enact a statute for it take effect. His lawyers will also have substantive arguments, like denying that the mob violence of Jan. 6 rose to the level of an “insurrection” in the constitutional sense.The dilemma invites comparisons to the Supreme Court’s intervention in the 2000 election, which overruled Florida’s Supreme Court and ensured that George W. Bush would maintain his narrow lead over Al Gore in that state to win its Electoral College votes and become the next president.A similarity is the risk of the appearance of partisanship. In the Bush v. Gore case, the five most conservative justices ensured that the Republican candidate would prevail. Today, the U.S. Supreme Court is controlled by a supermajority of six Republican appointees, so a decision to overturn the Colorado ruling and help Mr. Trump could also carry partisan overtones.A difference is the implications for democracy. The Florida Supreme Court in 2000 was not itself deciding the fate of the candidates but trying to allow the completion of a recount that would have clarified the will of voters. If the Supreme Court now overturns the Colorado ruling, it will be leaning in the direction of letting voters decide about Mr. Trump; upholding the state court’s ruling would be the opposite.There has always been inherent tension in the American governing system because the Constitution sets certain limits on democracy. For one, most decisions are made by elected representatives, not directly by plebiscites and referendums.The current dilemma invites comparisons to the Supreme Court’s intervention in the 2000 election.Mark Wilson/Newsmakers, via Getty ImagesThe structures of the Senate and the Electoral College system undercut the democratic principle that everyone has an equal say by giving disproportionate power to voters in sparsely populated states — including sometimes enabling the loser of the national popular vote, like Mr. Bush in 2000 and Mr. Trump in 2016, to nevertheless become president.Not everyone who lives in the United States is allowed to vote for government leaders. Noncitizen permanent residents, people under 18 and convicted felons in some states may not participate in elections — all of which conflicts with the principle that the legitimacy of the government stems from the consent of the governed about who will be in charge.Other requirements restrict who is eligible to hold office. The 22nd Amendment bars anyone from being elected president a third time, even if voters want to keep that person in place. It was added after President Franklin D. Roosevelt violated the constitutional norm of retiring after two terms, which President George Washington had established.The Constitution sets age limits: One must be at least 25 years old to be a member of the House, 30 to be a senator and 35 to be president, even if voters would prefer someone who happens to be younger. And the Constitution dictates that to be eligible to be president, a person must be a natural-born citizen. The antidemocratic nature of that rule drew some attention when the actor Arnold Schwarzenegger, a naturalized citizen who was born in Austria, was elected governor of California. He could never run for president, no matter how popular he was with voters.The issue of citizenship at birth has also been the subject of political attention. When Senator John McCain ran as the Republican presidential nominee in 2008, there were questions at the fringes about whether he was eligible because he had been born in the Panama Canal Zone, although to American parents.Mr. Trump’s rise to national political prominence was fueled by his lie that President Barack Obama, who was born in Hawaii, might have been born in Kenya. And in the 2016 Republican primary, Mr. Trump attacked a rival, Senator Ted Cruz of Texas, over his birth in Canada, similarly seeking to raise doubts about his eligibility for the presidency.But, despite Mr. Trump’s own history of questioning the eligibility of his political adversaries for president, his legal disqualification would risk undermining democratic legitimacy in a society where extreme polarization and partisanship are already raw.The moment calls to mind an ambiguous legal phrase that is often invoked as a rallying cry for courageously following the law but, as Mr. Vladeck pointed out, also carries a grim warning: “Let justice be done though the heavens fall.” More

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      Barring Trump From the Ballot Would Be a Mistake

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      When Donald Trump appeals the Colorado decision disqualifying him from the ballot in that state’s Republican primary, the Supreme Court should overturn the ruling unanimously.Like many of my fellow liberals, I would love to live in a country where Americans had never elected Mr. Trump — let alone sided with him by the millions in his claims that he won an election he lost, and that he did nothing wrong afterward. But nobody lives in that America. For all the power the institution has arrogated, the Supreme Court cannot bring that fantasy into being. To bar Mr. Trump from the ballot now would be the wrong way to show him to the exits of the political system, after all these years of strife.Some aspects of American election law are perfectly clear — like the rule that prohibits candidates from becoming president before they turn 35 — but many others are invitations to judges to resolve uncertainty as they see fit, based in part on their own politics. Take Section 3 of the 14th Amendment, which blocks insurrectionists from running for office, a provision originally aimed at former Confederates in the wake of the Civil War. There may well be some instances in which the very survival of a democratic regime is at stake if noxious candidates or parties are not banned, as in West Germany after World War II. But in this case, what Section 3 requires is far from straightforward. Keeping Mr. Trump off the ballot could put democracy at more risk rather than less.Part of the danger lies in the fact that what actually happened on Jan. 6 — and especially Mr. Trump’s exact role beyond months of election denial and entreaties to government officials to side with him — is still too broadly contested. The Colorado court deferred to a lower court on the facts, but it was a bench trial, meaning that no jury ever assessed what happened, and that many Americans still believe Mr. Trump did nothing wrong. A Supreme Court that affirms the Colorado ruling would have to succeed in constructing a consensual narrative where others — including armies of journalists, the Jan. 6 commission and recent indictments — have failed.The Supreme Court has been asked to weigh in on the fate of presidencies before, and its finer moments in this regard have been when it was a force for stability and reflected the will and interests of voters. Almost 50 years ago, the court faced a choice to end a presidency as it deliberated on Richard Nixon’s high crimes and misdemeanors. But by the time the Supreme Court acted in 1974, a special prosecutor, Leon Jaworski, had already won indictments of Nixon’s henchmen and named the president himself before a grand jury as an unindicted co-conspirator. Public opinion was with Jaworski; the American people agreed that the tapes Nixon was trying to shield from prosecutors were material evidence, and elites in both political parties had reached the same conclusion. In deciding against Nixon, the Supreme Court was only reaffirming the political consensus.As the constitutional law professor Josh Chafetz has observed, even United States v. Nixon was suffused with a rhetoric of judicial aggrandizement. But if the Supreme Court were to exclude Mr. Trump from the ballot, seconding the Colorado court on each legal nicety, when so many people still disagree on the facts, it would have disastrous consequences.For one thing, it would strengthen the hand of a Supreme Court that liberals have rightly complained grabs too much power too routinely. Joe Biden came into office calling for a re-examination of whether the Supreme Court needs reform, and there would be considerable irony if he were re-elected after that very body was seen by millions to pre-empt a democratic choice.Worse, it is not obvious how many would accept a Supreme Court decision that erased Mr. Trump’s name from every ballot in the land. Liberals with bad memories of Bush v. Gore, which threw an election to one candidate rather than counting votes, have often regretted accepting that ruling as supinely as they did. And rejecting Mr. Trump’s candidacy could well invite a repeat of the kind of violence that led to the prohibition on insurrectionists in public life in the first place. The purpose of Section 3 was to stabilize the country after a civil war, not to cause another one.As it unfolds, the effort to disqualify Mr. Trump could make him more popular than ever. As harsh experience since 2016 has taught, legalistic maneuvers haven’t hurt him in the polls. And Democrats do nothing to increase their popularity by setting out to “save democracy” when it looks — if their legal basis for proceeding is too flimsy — as if they are afraid of practicing it. That the approval ratings of the Democratic standard-bearer, Mr. Biden, have cratered as prosecutions of Mr. Trump and now this Colorado ruling have accumulated indicates that trying again is a mistake, both of principle and of strategy.Perhaps the worst outcome of all would be for the Supreme Court to split on ideological lines, as it did in Bush v. Gore, hardly its finest hour. Justices have fretted about the damage to their “legitimacy” when their decisions look like political choices. They often are, as so many recent cases have revealed, but when the stakes are this high, the best political choice for the justices is to avoid final judgment on contested matters of fact and law and to let the people decide.In the Nixon era, the justices were shrewd enough to stand together in delivering their decision: It was handed down 8-0, with one recusal. In our moment, the Supreme Court must do the same.This will require considerable diplomacy from Chief Justice John Roberts, and it will define his stewardship as profoundly as cases such as Dobbs v. Jackson Women’s Health Organization, in which his effort to herd his colleagues into consensus failed. In this situation, unlike that one, it will require him to convince his liberal colleagues who might otherwise dissent. For their part, they ought to be able to anticipate the high and unpredictable costs of presuming that judges can save a nation on the brink of breakdown.The truth is that this country has to be allowed to save itself. The Supreme Court must act, but only to place the burden on Mr. Trump’s political opponents to make their case in the political arena. Not just to criticize him for his turpitude, but to argue that their own policies benefit the disaffected voters who side with a charlatan again and again.Samuel Moyn teaches law and history at Yale.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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      How Could the Supreme Court Respond to Colorado?

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      David Firestone and Donald Trump engaged in insurrection and that disqualifies him from appearing on the 2024 ballot in Colorado, the state’s Supreme Court ruled Tuesday.In this audio conversation with the Opinion editor David Firestone, the editorial board writer Jesse Wegman says he believes that the United States Supreme Court will eventually take this case. But Wegman is less certain than he once was that “the court is just going to strike this down.”Illustration by The New York Times; Photograph by Scott Morgan/ReutersThe 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, X (@NYTOpinion) and Instagram.This episode of “The Opinions” was produced by Jillian Weinberger. It was edited by Kaari Pitkin with help from Phoebe Lett. Mixing by Isaac Jones and Carole Sabouraud. Original music by Carole Sabouraud. Fact-checking by Marge Mary Locker and Kate Sinclair. Audience strategy by Kristina Samulewski and Shannon Busta. More

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      in Elections

      Democrats Keep Hoping It’s Curtains for Trump. He’s Still Center Stage.

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      As Donald Trump faces a new threat to his political future, this time over the question of ballot eligibility, Democrats again find themselves looking toward American institutions to stop him.For as long as Donald J. Trump has dominated Republican politics, many Democrats have pined for a magical cure-all to rid them of his presence.There was the Mueller investigation into Mr. Trump’s 2016 campaign and its ties to Russia, which began four months into his presidency. Then came the first impeachment. Then, after Mr. Trump lost the 2020 election and his supporters stormed the Capitol, the second impeachment.Each time, Democrats entertained visions of Mr. Trump meeting his political downfall. Each time, they were disappointed.This year, liberal hopes have sprung anew, with federal and state prosecutors bringing 91 felony charges against Mr. Trump in four criminal cases.Then, on Tuesday, came what appeared to be an out-of-the-blue act of deliverance from Denver. Colorado’s top court ruled that Mr. Trump should be disqualified from holding office on the grounds that he incited an insurrection on Jan. 6, 2021, a decision that is likely to end up at the U.S. Supreme Court.Once again, Democrats find themselves looking toward American institutions to stop Mr. Trump, whom they view as a mortal threat to democracy. For many, it may be more pleasant to think about a judicial endgame that stops Mr. Trump than envisioning the slog of next year’s likely rematch against President Biden.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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      in Elections

      What Is the 14th Amendment, and How Could It Disqualify Trump in Colorado?

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      A ruling that Donald Trump is ineligible for the presidency will test the court’s methodological values.The ruling by Colorado’s Supreme Court that former President Donald J. Trump is ineligible to be president again because he engaged in an insurrection has cast a spotlight on the basis for the decision: the Constitution’s 14th Amendment, which includes a clause disqualifying people who violated their oaths of office from holding government positions in the future.Mr. Trump has vowed to appeal to the Supreme Court. It is dominated by a supermajority of six justices who emerged from the conservative legal movement, which values methods of interpretation known as textualism and originalism. Under those precepts, judges should interpret the Constitution based on its text and publicly understood meaning when adopted, over factors like evolving social values, political consequences or an assessment of the intended purpose of the provision.Some of the major questions raised by the ruling — like whether it would need an act of Congress to take effect as well as the power of a state court to decide whether a federal candidate is qualified — do not turn on interpreting the clause’s text. But here is where textualism and originalism may come into play.What is the disqualification clause?The 14th Amendment was adopted in 1868 as part of the post-Civil War Reconstruction Era. To deal with the problem of former Confederates holding positions of government power, its third section disqualifies former government officials who have betrayed their oaths from holding office.Specifically, the clause says that people are ineligible to hold any federal or state office if they took an oath to uphold the Constitution in one of various government roles, including as an “officer of the United States,” and then engaged in insurrection or rebellion against the United States or aided its enemies. The clause also says a supermajority vote in Congress could waive such a penalty.According to a Congressional Research Service report, a criminal conviction was not seen as necessary: federal prosecutors brought civil actions to oust officials who were former Confederates, and Congress refused to seat certain members under the clause. Congress passed amnesty laws in 1872 and 1898, lifting the penalties on former Confederates.Is the president an ‘officer of the United States’?Mr. Trump is unique among American presidents: He has never held any other public office and only swore an oath to the Constitution as president. That raises the question of whether the disqualification clause covers the oath he took. While as a matter of ordinary speech, a president is clearly an “officer of the United States,” there is a dispute over whether it excludes presidents as a constitutional term of art.In 2021, two conservative legal scholars, Josh Blackman of the South Texas College of Law Houston and Seth Barrett Tillman of the National University of Ireland, Maynooth, published a law review article about the clause arguing on textualist and originalist grounds that a president does not count as an officer of the United States. Among other issues, they focused on language about “officers” in the original Constitution as ratified in 1788 — including language about oaths that can be read as distinguishing appointed executive branch officers from presidents, who are elected.Last summer, two other conservative legal scholars — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — posted a law review article that invoked similar methodology but concluded that Mr. Trump is ineligible for the presidency. “Essentially all the evidence concerning the original textual meaning” of the clause pointed in that direction, the scholars argued. Among other things, they wrote that phrases like “officer of the United States” must be read “sensibly, naturally and in context, without artifice” that would render it a “‘secret code’ loaded with hidden meanings.”In an earlier phase of the Colorado case, a lower court judge had ruled that the clause does not cover presidents and so rejected removing Mr. Trump from the ballot. In finding the opposite, the Colorado Supreme Court also cited evidence of people in the immediate post-Civil War era discussing the president as an officer of the government, while focusing on ordinary use of the term rather than treating it as a term of art.Were the events of Jan. 6 an insurrection?The question of whether “insurrection” aptly describes the events of Jan. 6 is another topic of debate, although it was not a major disagreement among judges in Colorado.Some critics of Mr. Trump use that word to describe how a pro-Trump mob overran the Capitol in an attempt to block Congress from certifying President Biden’s Electoral College victory. Mr. Trump’s allies — as well as some people who are otherwise his critics — argue that “insurrection” is hyperbole.The Constitution does not define the word. While it was written after the South’s armed rebellion against the Union, its text does not limit its scope to participation in events of a comparable scale. A federal statute allowing presidents to use troops to suppress insurrections discusses “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States” that “make it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings.”The Colorado Supreme Court’s four-justice majority found that the events were an insurrection, and that issue was not the basis of any of the three dissents. The lower-court judge who had rejected the lawsuit on the grounds that the president is not an “officer of the United States” had nevertheless found that the events of Jan. 6 constituted an insurrection.Has Trump ‘engaged’ in an insurrection?Even assuming the events of Jan. 6 were an insurrection, there remains the question of whether the actions of Mr. Trump — who did not himself storm Congress — amounted to engaging in an insurrection against the government or giving aid and comfort to its enemies.The House committee that investigated Mr. Trump’s attempt to subvert the 2020 election concluded that the events met the standard of an insurrection, and asked the Justice Department to consider charging him under a law that makes it a crime to incite, assist, or give “aid or comfort” to an insurrection.The panel cited his summoning of supporters to Washington on Jan. 6, the fiery speech he delivered to them as they morphed into a mob, how he refused for hours to take steps to call off the rioters despite being implored by aides to do so, and an inflammatory tweet he sent about Mr. Pence during the violence.Still, the special counsel, Jack Smith, did not include inciting an insurrection in the charges he brought against Mr. Trump, and to date Mr. Trump has not been convicted of any crime in connection with his attempts to stay in office for a second term despite losing the election. Mr. Trump has argued that all his actions were protected by the Constitution, including the First Amendment.What else have courts said about the clause and Jan. 6?There has never before been a presidential candidate who is accused in court of being an oath-breaking insurrectionist, so there is no Supreme Court precedent solidly on point. But other politicians have faced similar legal challenges in connection with the events of Jan. 6, 2021.In early 2022, opponents of Representative Madison Cawthorn, a Trump-aligned Republican of North Carolina, filed a lawsuit to keep him from running for re-election based on what they described as his role in encouraging what became the Jan. 6 riot. A Federal District Court judge dismissed the case, ruling that the clause no longer had force after the 1872 amnesty law. But an appeals court overturned that ruling, holding that the amnesty law was only retrospective and the prohibition still applied in general. Mr. Cawthorn lost his primary election, so the case was rendered moot without resolving other issues.Opponents of Representative Marjorie Taylor Greene, a Trump-aligned Republican of Georgia, similarly tried to keep her from running for re-election in 2022. A state judge rejected that challenge, finding no persuasive evidence that she “took any action — direct physical efforts, contribution of personal services or capital, issuance of directives or marching orders, transmissions of intelligence, or even statements of encouragement — in furtherance” of what turned into the Jan. 6 riot after she first took the oath on Jan. 3, 2021.And in September 2022, a state judge in New Mexico ordered Couy Griffin, a commissioner in New Mexico’s Otero County, removed from office under the clause. Mr. Griffin had been convicted of trespassing for breaching the Capitol as part of the mob. The judge ruled that the events surrounding the Jan. 6 riot counted as an insurrection and that Mr. Griffin’s role in the matter rendered him “constitutionally disqualified from serving.” More