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      Some of the Lawyers Who May Fill a Second Trump Administration

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      Donald Trump’s allies are hoping to install a different species of legal gatekeeper throughout the federal government. Here are some of the potential prospects.Election Day is a year away, but key allies of former President Donald J. Trump are already thinking about staffing a potential administration, including by filling White House and agency legal positions with aggressive and ideologically like-minded lawyers.Trump allies are preparing to populate a new administration with a different breed of lawyer — a departure from the type that stymied part of his first-term agenda and that despite their mainstream conservative credentials are seen as too cautious by people close to the former president. They are seeking lawyers in federal agencies and in the White House committed to his “America First” ideology and willing to use edgy theories to advance his cause.It is too early to say with any certainty whom Mr. Trump would select were he to win a second term starting in 2025. But several conservative nonprofits, staffed by people who are likely to take on senior White House positions if there is a second Trump administration, have been putting together lists of prospects.At Project 2025, a well-funded effort by the Heritage Foundation to prepare personnel and policy for the next conservative administration, John McEntee, one of Mr. Trump’s most trusted aides, is part of a team searching for potential lawyers.A person familiar with the Heritage 2025 project said it was listing multiple options for every position. Some of the names under early and unofficial consideration are:Joseph E. Schmitz as the Pentagon’s top lawyer. A Bush-era Pentagon inspector general, he argued after the 2020 election that the Supreme Court or the vice president, Mike Pence, should intervene to overturn Mr. Trump’s loss.Joseph E. Schmitz in 2004.Jamie-Andrea Yanak/Associated PressWe are having trouble retrieving the article content.Please enable JavaScript in your browser settings.We are confirming your access to this article, this will take just a moment. However, if you are using Reader mode please log in, subscribe, or exit Reader mode since we are unable to verify access in that state.Confirming article access.If you are a subscriber, please  More

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      Trump’s Allies Want a New Breed of Lawyer if He Returns to Power

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      Close allies of Donald J. Trump are preparing to populate a new administration with a more aggressive breed of right-wing lawyer, dispensing with traditional conservatives who they believe stymied his agenda in his first term.The allies have been drawing up lists of lawyers they view as ideologically and temperamentally suited to serve in a second Trump administration. Their aim is to reduce the chances that politically appointed lawyers would frustrate a more radical White House agenda — as they sometimes did when Mr. Trump was in office, by raising objections to his desires for certain harsher immigration policies or for greater personal control over the Justice Department, among others.Now, as Trump allies grow more confident in an election victory next fall, several outside groups, staffed by former Trump officials who are expected to serve in senior roles if he wins, have begun parallel personnel efforts. At the start of Mr. Trump’s term, his administration relied on the influential Federalist Society, the conservative legal network whose members filled key executive branch legal roles and whose leader helped select his judicial nominations. But in a striking shift, Trump allies are building new recruiting pipelines separate from the Federalist Society.These back-room discussions were described by seven people with knowledge of the planning, most of whom spoke on the condition of anonymity to describe private conversations. In addition, The New York Times interviewed former senior lawyers in the Trump administration and other allies who have remained close to the president and are likely to serve in a second term.The interviews reveal a significant break within the conservative movement. Top Trump allies have come to view their party’s legal elites — even leaders with seemingly impeccable conservative credentials — as out of step with their movement.“The Federalist Society doesn’t know what time it is,” said Russell T. Vought, a former senior Trump administration official who runs a think tank with close ties to the former president. He argued that many elite conservative lawyers had proved to be too timid when, in his view, the survival of the nation is at stake.Such comments may surprise those who view the Federalist Society as hard-line conservatives. But the move away from the group reflects the continuing evolution of the Republican Party in the Trump era and an effort among those now in his inner circle to prepare to take control of the government in a way unseen in modern presidential history.Two of the allies leading the push are Stephen Miller, Mr. Trump’s former senior adviser, and John McEntee, another trusted aide whom the then-president had empowered in 2020 to rid his administration of political appointees perceived as disloyal or obstructive.The nonprofit groups they are involved in are barred by law from supporting a candidate, and none of the work they are doing is explicitly tied to Mr. Trump. But Mr. Miller and Mr. McEntee remain close to the former president and are expected to have his ear in any second term.Mr. Trump himself, focused for now on multiple criminal and civil cases against him, appears disengaged from these efforts. But he made clear throughout his term in office that he was infuriated by many of the lawyers who worked for him, ranting about how they were “weak” and “stupid.”By the end of his term, lawyers he appointed early in his administration had angered the White House by raising legal concerns about various policy proposals. But Mr. Trump reserved his deepest rage for the White House and Justice Department legal officials who largely rejected his attempts to overturn the 2020 election, according to people who spoke with him. Casting about for alternative lawyers who would tell him what he wanted to hear, Mr. Trump turned for that effort to a group of outside lawyers, many of whom have since been indicted in Georgia.People close to the former president say they are seeking out a different type of lawyer committed to his “America First” ideology and willing to endure the personal and professional risks of association with Mr. Trump. They want lawyers in federal agencies and in the White House who are willing to use theories that more establishment lawyers would reject to advance his cause. This new mind-set matches Mr. Trump’s declaration that he is waging a “final battle” against demonic “enemies” populating a “deep state” within the government that is bent on destroying America.Several of Mr. Trump’s key allies — including Stephen Miller, his former senior adviser — are drawing up lists of lawyers they plan to hire if the former president returns to the White House in 2025.Cooper Neill for The New York TimesThere were a few lawyers like that in Mr. Trump’s administration, but they were largely outnumbered, outranked and often blocked by more traditional legal conservatives. For those who went to work for Mr. Trump but grew disillusioned, the push to systematically install Trump loyalists who may see the law as malleable across a second Trump administration has been a cause for alarm.John Mitnick was appointed by Mr. Trump as general counsel of the Homeland Security Department in 2018. But he was fired in 2019 as part of a broad purge of the agency’s leaders — whom Mr. Trump had installed — and was replaced by one of Mr. Miller’s allies.Mr. Mitnick predicted that “no qualified attorneys with integrity will have any desire to serve as political appointees” in a second Trump term, and that instead it would be “predominantly staffed by opportunists who will rubber-stamp whatever Trump and his senior White House staff want to do.”In many ways, the Federalist Society has become synonymous with the Republican establishment, and its members’ most common interests — including pushing an originalist interpretation of the Constitution and federal statutes — can be distinct from the whims and grievances of Mr. Trump himself. Its membership dues are low, and politically ambitious Republican lawyers of various stripes routinely join it or attend its events. Many of the more aggressive lawyers the Trump allies are eyeing have their own links to it.But after both the legal policy fights inside the Trump administration and the refusal by the group’s most respected luminaries to join Mr. Trump’s efforts to overturn the 2020 election, the phrase “Federalist Society” became a slur for some on the Trump-aligned right, a shorthand for a kind of lawyerly weakness.Hard-right allies of Mr. Trump increasingly speak of typical Federalist Society members as “squishes” too worried about maintaining their standing in polite society and their employment prospects at big law firms to advance their movement’s most contentious tactics and goals.“Trump and his administration learned the hard way in their first term that the Democrats are playing for keeps,” said Mike Davis, a former congressional aide who helped shepherd judicial nominees during the Trump administration and has become a close ally of the 45th president. “And in the Trump 47 administration, they need much stronger attorneys who do not care about elite opinion who will fight these key cultural battles.”The chilling of the relationship between Mr. Trump and Leonard Leo, a leader of the Federalist Society, embodies a broader rift between Mr. Trump and conservative legal elites.T.J. Kirkpatrick for The New York TimesA Fraught UnionWhen Mr. Trump wrested the 2016 Republican presidential nomination from the party’s old guard, it was unclear whether social conservatives would turn out in the general election to vote for a thrice-married New Yorker who had cultivated a playboy reputation and once described himself as “very pro-choice.” But Mr. Trump won their support by essentially striking a deal with legal conservatives: He agreed to fill Supreme Court vacancies from a list of prospects compiled by a small number of movement stalwarts.This group helping to shape the judiciary included Leonard A. Leo — arguably the most powerful figure in the conservative legal movement and a leader of the Federalist Society — and Donald F. McGahn II, Mr. Trump’s 2016 campaign general counsel and first White House counsel. With a seat already open after the death of Justice Antonin Scalia, the move worked: Exit polls showed that court-focused voters helped secure Mr. Trump’s narrow victory.Along with the Republican leader in the Senate, Mitch McConnell of Kentucky, Mr. Leo and Mr. McGahn — and later Pat A. Cipollone, Mr. Trump’s second White House counsel — created an assembly line for turning Federalist Society-style lawyers into appeals court judges and Supreme Court justices.But the union between Mr. Trump and the conservative legal establishment could be more fraught than it sometimes appeared. As his presidency wore on, Mr. Trump attacked and sidelined many of the lawyers around him. That included Mr. Leo.One episode, described by a person familiar with the incident, illustrates the larger chill.In January 2020, Mr. Leo was having dinner at Mar-a-Lago when Mr. Trump strode up to his table. The president stunned Mr. Leo, publicly berating him and accusing him of recommending the deputy attorney general, Rod J. Rosenstein, who appointed a special counsel to investigate ties between the Russian government and the Trump campaign.Taken aback, Mr. Leo protested that he had actually suggested someone else for the position — Mr. Cipollone. Mr. Trump walked away without apologizing.Nearly a year later, when Mr. Trump was trying to enlist legal assistance for his efforts to overturn his 2020 election loss, he reached out three times to Mr. Leo. But Mr. Leo declined to take or return Mr. Trump’s calls, and has since only dealt with him through others.A spokesman for Mr. Trump did not respond to repeated requests for comment.In a statement, Mr. Leo said, “I have nothing to say regarding his current efforts, but I’m just grateful that President Trump transformed the Supreme Court and the federal judiciary in his first term.”Mr. Mitnick’s experience underscores the style of lawyering that Trump allies saw as too cautious. His role as the top lawyer at the Department of Homeland Security put him in the path of increasingly aggressive policy proposals from a top White House adviser to Mr. Trump, Mr. Miller.Mr. Miller, who is not a lawyer, is known for his vehement opposition to immigration. Mr. Mitnick and Mr. Miller are said to have clashed, directly and indirectly, over legal risks raised by regulatory and policy actions emanating from the White House, including separating migrant children from their parents and transporting migrants to so-called sanctuary cities.In 2019, the White House purged the leadership ranks of the Homeland Security Department, firing Mr. Mitnick. Mr. Trump ultimately installed as his replacement Chad Mizelle, who had been out of law school just seven years but was a close Miller ally.Like numerous other positions filled later in Mr. Trump’s term, Mr. Mizelle was appointed as “acting” general counsel, sidestepping a Senate vetting and confirmation process that would most likely have closely scrutinized whether he was qualified for the job.With Mr. Mizelle acting as the department’s top lawyer when the Covid-19 pandemic arose, the Trump administration seamlessly invoked emergency powers to flatly refuse to consider the petition of any asylum seeker arriving at the southern border.Seeking ‘America First’ LawyersMr. Miller has stayed close to Mr. Trump and is expected to play an even more important role in shaping policy if Mr. Trump returns to power.While out of office, Mr. Miller has been running a foundation focused on suing the Biden administration and recruiting a new generation of “America First” lawyers, with some from attorney general and solicitor general offices in Texas and other Republican-controlled states. “America First” Republicans are often opposed to both legal and illegal immigration, protectionist on trade and skeptical of international alliances and military intervention overseas.One first-term Trump lawyer who would most likely serve in a second term is Mark Paoletta, who served as general counsel at the Office of Management and Budget and worked closely with Mr. Vought, the agency’s director. The O.M.B. team saw itself as an island of facilitators within an executive branch they believed was too quick to tell Mr. Trump that his ideas were unachievable or illegal.“The Federalist Society doesn’t know what time it is,” said Russell Vought, a former senior Trump administration official.Doug Mills/The New York TimesTogether, Mr. Vought and Mr. Paoletta came up with the idea of having Mr. Trump declare a national emergency and invoke special powers to spend more taxpayer money on a border wall than Congress was willing to appropriate.Mr. Paoletta also believed that Mr. Trump could have exerted greater personal control over the Justice Department, although Mr. Paoletta said in an interview that he did not advocate using the presidency’s command over federal law enforcement for partisan and personal score-settling. He and other advisers likely to follow Mr. Trump back into power view White House authority to direct the Justice Department as proper under the so-called unitary executive theory. It holds that presidents can directly command the entire federal bureaucracy and that pockets of independent decision-making authority are unconstitutional.“I believe a president doesn’t need to be so hands-off with the D.O.J.,” Mr. Paoletta said, adding: “It’s not an independent agency, and he is the head of the executive branch. A president has every right to direct D.O.J. to look at items that are his policy priorities and other matters of national importance.”Mr. Trump is not known for pondering legal philosophy. But he has found common cause with lawyers who have a sweeping view of presidential power.In his 2024 campaign, Mr. Trump has promised to “appoint a real special prosecutor to go after” President Biden and his family — shattering the post-Watergate norm of Justice Department independence. More than any legal policy statement on his campaign website, retribution may be the closest thing to a governing philosophy for Mr. Trump as he seeks a second term.‘Legal Creativity’Mr. Trump has rarely looked closely at a lawyer’s area of specialty. Instead, he has often looked at whether a particular lawyer can help him gain something he wants. He spent much of his first term railing against the lawyers who worked for him and wondering aloud why none of them could live up to the memory of his notoriously ruthless mentor, Roy Cohn, who represented Mr. Trump in his early business career in New York.When he sought to overturn the 2020 election, Mr. Trump was unsatisfied with his government lawyers, including his second White House counsel, Mr. Cipollone, who largely rejected his efforts to subvert the results. Mr. Trump turned to a different set of outside lawyers.Those lawyers included Rudolph W. Giuliani, John C. Eastman, Kenneth Chesebro, Jenna Ellis and Sidney K. Powell, all of whom have since been indicted in Georgia in a racketeering case that charged the former president and 18 of his allies with conspiring to overturn his election loss there in 2020. Ms. Powell, Mr. Chesebro and Ms. Ellis have pleaded guilty.Mr. Trump was also infuriated that the justices he had put on the Supreme Court declined to repay his patronage by intervening in the 2020 election. As Mr. Trump criticized the court, Mr. Leo with the Federalist Society is said to have told associates he was disappointed that the former president’s rhetoric made his judicial appointment record look “transactional,” aimed at advancing Mr. Trump’s personal interests rather than a broader philosophical mission.Jeffrey Clark, a former high-ranking Justice Department official, was criminally charged in Georgia in connection with efforts to overturn Mr. Trump’s 2020 election loss in that state.Pool photo by Susan WalshIn the same way, Mr. Trump had a falling-out with his attorney general, William P. Barr, who refused to falsely say that the Justice Department had evidence of widespread voter fraud. After Mr. Barr resigned, his deputy and successor, Jeffrey A. Rosen, also refused to throw the department’s weight behind Mr. Trump’s claims. Mr. Trump then explored the idea of installing Jeffrey Clark — an official who was willing to raise concerns about purported election fraud — as acting attorney general.Mr. Clark has also been indicted in the Georgia case, but remains in favor with Mr. Trump and has met with the former president at his private clubs. Over the summer, at Mr. Trump’s golf club in Bedminster, N.J., Mr. Clark attended a fund-raiser for the people who have been imprisoned for rioting at the Capitol on Jan. 6, 2021.Mr. Clark will most likely be in contention for a senior Justice Department position in any second Trump administration, depending on the outcome of his legal travails. He has written a constitutional analysis, titled “The U.S. Justice Department Is Not Independent,” that amounts to an intellectual blueprint for direct presidential control of federal law enforcement.He declined to comment. On a conservative podcast last year, Mr. Clark said that “extraordinary times call for extraordinary, responsive legal creativity.” More

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      Supreme Court Weighs When Officials May Block Citizens on Social Media

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      The justices struggled to distinguish private conduct, which is not subject to the First Amendment, from state action, which is.The Supreme Court worked hard in a pair of arguments on Tuesday to find a clear constitutional line separating elected officials’ purely private social media accounts from ones that reflect government actions and are subject to the First Amendment. After three hours, though, it was not clear that a majority of the justices had settled on a clear test.The question in the two cases was when the Constitution limits officials’ ability to block users from their accounts. The answer turned on whether the officials’ use of the accounts amounted to “state action,” which is governed by the First Amendment, or private activity, which is not.That same question had seemed headed to the Supreme Court after the federal appeals court in New York ruled in 2019 that President Donald J. Trump’s Twitter account was a public forum from which he was powerless to exclude people based on their viewpoints.Had the account been private, the court said, Mr. Trump could have blocked whomever he wanted. But since he used the account as a government official, he was subject to the First Amendment.After Mr. Trump lost the 2020 election, the Supreme Court vacated the appeals court’s ruling as moot.Justice Elena Kagan said on Tuesday that Mr. Trump’s Twitter feed was in an important sense official and therefore subject to the First Amendment.“I don’t think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account,” Justice Kagan said. “It was an important part of how he wielded his authority. And to cut a citizen off from that is to cut a citizen off from part of the way that government works.”Hashim M. Mooppan, a lawyer for two school board officials, said none of that implicated the First Amendment.“President Trump could have done the same thing from Mar-a-Lago or a campaign rally,” Mr. Mooppan said. “If he gave every one of those speeches at his personal residence, it wouldn’t somehow convert his residence into government property.”The cases argued Tuesday were the first of several this term in which the Supreme Court will consider how the First Amendment applies to social media companies. The court will hear arguments next year on both whether states may prohibit large social media companies from removing posts based on the views they express and whether Biden administration officials may contact social media platforms to combat what they say is misinformation.The first case argued Tuesday concerned the Facebook and Twitter accounts of two members of the Poway Unified School District in California, Michelle O’Connor-Ratcliff and T.J. Zane. They used the accounts, created during their campaigns, to communicate with their constituents about activities of the school board, invite them to public meetings, ask for comments on the board’s activities and discuss safety issues in the schools.Two parents, Christopher and Kimberly Garnier, frequently posted lengthy and repetitive critical comments, and the officials eventually blocked them. The parents sued, and lower courts ruled in their favor.“When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them,” Judge Marsha S. Berzon wrote for a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in San Francisco.Mr. Mooppan said the accounts were personal and were created and maintained without any involvement by the district.Justice Brett M. Kavanaugh pressed Mr. Mooppan on what it would take to make the accounts official and so subject to the First Amendment. “Is announcing rules state action?” the justice asked.Mr. Mooppan said it would be if the announcement was not available elsewhere. He gave a more equivocal answer to a question about notifications of school closures. But he said a general public safety reminder was not state action.Pamela S. Karlan, a lawyer for the parents, said Ms. O’Connor-Ratcliff’s Facebook feed was almost entirely official. “Of the hundreds of posts, I found only three that were truly non-job-related,” Ms. Karlan said, adding, “I defy anyone to look at that and think this wasn’t an official website.”The second case, Lindke v. Freed, No. 22-611, concerned a Facebook account maintained by James R. Freed, the city manager of Port Huron, Mich. He used it to comment on a variety of subjects, some personal and some official. Among the latter were descriptions of the city’s responses to the coronavirus pandemic.The posts prompted critical responses from a resident, Kevin Lindke, whom Mr. Freed eventually blocked. Mr. Lindke sued and lost. Judge Amul R. Thapar, writing for a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said Mr. Freed’s Facebook account was personal, meaning that the First Amendment had no role to play.“Freed did not operate his page to fulfill any actual or apparent duty of his office,” Judge Thapar wrote. “And he did not use his governmental authority to maintain it. Thus, he was acting in his personal capacity — and there was no state action.”Justice Kagan told Allon Kedem, a lawyer for Mr. Lindke, that Mr. Freed’s page did not look particularly official.“There are a lot of baby pictures and dog pictures and obviously personal stuff,” she said. “And intermingled with that there is, as you say, communication with constituents about important matters. But it’s hard to look at this page as a whole, unlike the one in the last case, and not think that surely this could not be the official communications channel.” More

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      Trump Sues to Ensure He Is on the Ballot in Michigan

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      Donald Trump’s lawsuit was the latest turn in a nationwide battle over his eligibility to hold office again, including a case being heard this week in Colorado.Former President Donald J. Trump sued Michigan’s top elections official, seeking to ensure he would be on the ballot for the 2024 presidential election.In a 64-page filing on Monday, Mr. Trump’s lawyers said that Jocelyn Benson, Michigan’s secretary of state, had created “uncertainty” by failing to respond to communications from the Trump campaign about his ballot eligibility. Mr. Trump is the dominant front-runner for the Republican Party’s presidential nomination.His lawyers added that other parties had sued Ms. Benson to keep Mr. Trump off the ballot in 2024, arguing that he was ineligible to hold office again under Section 3 of the 14th Amendment — a section that disqualifies anyone who “engaged in insurrection or rebellion” against the Constitution after having taken an oath to support it.Ms. Benson previously declined to disqualify Mr. Trump over his efforts to overturn the 2020 election, saying she did not have the authority to determine who was or was not eligible to run under the 14th Amendment. Plaintiffs in that case then sued in Michigan state court to have the court order Ms. Benson to disqualify Mr. Trump. Ms. Benson has noted that she is watching for the results of that case.Cheri Hardmon, a spokeswoman for Ms. Benson, said on Tuesday that the Michigan Department of State could not comment on pending litigation.The Michigan lawsuit was the latest turn in a nationwide battle over Mr. Trump’s eligibility to run for president. The suit was filed Monday afternoon in Michigan state court as a trial played out in Colorado to determine whether Mr. Trump’s efforts to overturn the 2020 election met the disqualification criteria in the 14th Amendment.That trial continued on Tuesday with testimony related to Mr. Trump and far-right extremists and their actions on Jan. 6, 2021.Peter Simi, an expert witness on political extremism and violence called by the plaintiffs, said during questioning that far-right extremists often communicate in ambiguous language, and that many of Mr. Trump’s comments before and on Jan. 6 were a key influence on extremists who rioted at the Capitol.Mr. Simi focused on Mr. Trump’s speech at the Ellipse that day, where he repeatedly called on his supporters to “fight” to prevent the election from being stolen.“A call to fight for far-right extremists — especially within the context as it’s laid out, that these threats are imminent, that you’re going to lose your country — then fighting would be understood as requiring violent action,” Mr. Simi testified.Lawyers for Mr. Trump argued during cross-examination that Mr. Simi had selectively chosen particular moments that made Mr. Trump look bad, and sought to cast doubt on whether the president had intended for the far right to interpret his remarks the way they did.Other cases on Mr. Trump’s eligibility are soon to follow: A similar lawsuit has been filed in New Hampshire. Oral arguments in a case in Minnesota are scheduled to begin Thursday. Separately, Democratic legislators in California asked their state’s attorney general last month to seek a court opinion on Mr. Trump’s eligibility.Whatever rulings come in these cases will not be final. They will almost certainly be appealed by the losing side, and the Supreme Court — which has a 6-3 conservative majority, including three justices appointed by Mr. Trump — is likely to have the final say. More

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      14th Amendment Trump Disqualification Trial Begins in Colorado

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      While some prominent constitutional experts argue that a clause in the amendment applies to former President Donald J. Trump after Jan. 6, that view is far from universal among legal scholars.A courtroom in Denver will host, starting Monday morning, something the nation has never seen: a trial to determine whether a major party’s likely presidential nominee is eligible to be president at all.The lawsuit, filed in September by six Colorado voters with the help of a watchdog group, Citizens for Responsibility and Ethics in Washington, argues that former President Donald J. Trump is ineligible to hold office again under Section 3 of the 14th Amendment. That section disqualifies anyone who “engaged in insurrection or rebellion” against the Constitution after having taken an oath to support it.The plaintiffs say that Mr. Trump’s efforts to overturn the 2020 election — including his actions before and while his supporters stormed the Capitol on Jan. 6, 2021, to try to stop the certification of Joseph R. Biden Jr.’s victory — meet the disqualification criteria.Sarah B. Wallace, the state district court judge presiding over the case, rejected multiple requests from Mr. Trump and from the Colorado Republican State Central Committee in recent weeks to dismiss the case without a trial.Judge Wallace has laid out nine topics to be addressed at the trial, which is scheduled to last all week. They include whether Section 3 of the 14th Amendment applies to presidents; what “engaged” and “insurrection” mean under that section; whether Mr. Trump’s actions fit those definitions; and whether the amendment is “self-executing” — in other words, whether it can be applied without specific action by Congress identifying whom to apply it to.These questions have been debated since the Jan. 6 attack, especially since Mr. Trump announced that he was running for president again, but there is little precedent to help answer them. The 14th Amendment was ratified shortly after the Civil War, and the disqualification clause was originally applied to people who had fought for the Confederacy. The courts have rarely had occasion to assess its modern application, and never in a case of this magnitude.Some prominent constitutional experts — including the conservative law professors William Baude and Michael Stokes Paulsen in an academic article, and the conservative former judge J. Michael Luttig and the liberal law professor Laurence H. Tribe in The Atlantic — have argued that the clause applies to Mr. Trump.But that view is far from universal among legal scholars, and several have told The New York Times over the past few months that the questions are complicated.The court’s list of topics also calls for discussion of Section 3 of the 20th Amendment, which governs what happens if a new president and vice president have not “qualified” by the time they are supposed to take office.The section says, in part, that “Congress may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified.”Mr. Trump’s lawyers say this means that only Congress can enforce constitutional qualifications for the presidency. Lawyers for the plaintiffs rejected that argument in a brief last week, saying the “plain language” of the amendment — which refers to the “president-elect” — applies only to a person whom has already been elected and has nothing to do with states’ ability to adjudicate candidates’ qualifications.The Colorado lawsuit is one of several efforts around the country to remove Mr. Trump from ballots under the 14th Amendment. Oral arguments in a case in Minnesota are scheduled to begin Thursday, and lawsuits have also been filed in New Hampshire and Michigan. Separately, Democratic legislators in California asked their state’s attorney general last month to seek a court opinion on Mr. Trump’s eligibility.Whatever verdicts come in these cases will not be final. They will almost certainly be appealed by the losing side, and the Supreme Court — which has a 6-3 conservative majority, including three justices appointed by Mr. Trump — is likely to have the final say. More

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      Trump’s Verbal Slips Could Weaken His Attacks on Biden’s Age

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      Donald Trump, 77, has relentlessly attacked President Biden, 80, as too old for office. But the former president himself has had a series of gaffes that go beyond his usual freewheeling style.One of Donald J. Trump’s new comedic bits at his rallies features him impersonating the current commander in chief with an over-the-top caricature mocking President Biden’s age.With droopy eyelids and mouth agape, Mr. Trump stammers and mumbles. He squints. His arms flap. He shuffles his feet and wanders laggardly across the stage. A burst of laughter and applause erupts from the crowd as he feigns confusion by turning and pointing to invisible supporters, as if he does not realize his back is to them.But his recent campaign events have also featured less deliberate stumbles. Mr. Trump has had a string of unforced gaffes, garble and general disjointedness that go beyond his usual discursive nature, and that his Republican rivals are pointing to as signs of his declining performance.On Sunday in Sioux City, Iowa, Mr. Trump wrongly thanked supporters of Sioux Falls, a South Dakota town about 75 miles away, correcting himself only after being pulled aside onstage and informed of the error.It was strikingly similar to a fictional scene that Mr. Trump acted out earlier this month, pretending to be Mr. Biden mistaking Iowa for Idaho and needing an aide to straighten him out.In recent weeks, Mr. Trump has also told supporters not to vote, and claimed to have defeated President Barack Obama in an election. He has praised the collective intellect of an Iranian-backed militant group that has long been an enemy of both Israel and the United States, and repeatedly mispronounced the name of the armed group that rules Gaza.“This is a different Donald Trump than 2015 and ’16 — lost the zip on his fastball,” Gov. Ron DeSantis of Florida told reporters last week while campaigning in New Hampshire.“In 2016, he was freewheeling, he’s out there barnstorming the country,” Mr. DeSantis added. “Now, it’s just a different guy. And it’s sad to see.”It is unclear if Mr. Trump’s recent slips are connected to his age. He has long relied on an unorthodox speaking style that has served as one of his chief political assets, establishing him, improbably, among the most effective communicators in American politics.But as the 2024 race for the White House heats up, Mr. Trump’s increased verbal blunders threaten to undermine one of Republicans’ most potent avenues of attack, and the entire point of his onstage pantomime: the argument that Mr. Biden is too old to be president.Mr. Biden, a grandfather of seven, is 80. Mr. Trump, who has 10 grandchildren, is 77.Even though only a few years separate the two men in their golden years, voters view their vigor differently. Recent polls have found that roughly two out of three voters say Mr. Biden is too old to serve another four-year term, while only about half say the same about Mr. Trump.If that gap starts to narrow, it’s Mr. Trump who has far more to lose in a general-election matchup.Mr. Trump and President Biden are the front-runners for each party’s nomination, setting up the likelihood of a 2020 rematch. Michelle Gustafson for The New York TimesAccording to a previously unreported finding in an August survey from The Associated Press-NORC Center for Public Affairs Research, 43 percent of U.S. voters said both men were “too old to effectively serve another four-year term as president.” Among those voters, 61 percent said they planned to vote for Mr. Biden, compared with 13 percent who said the same about Mr. Trump.Last week, similar findings emerged in a Franklin & Marshall College poll of registered voters in Pennsylvania, one of the most closely watched 2024 battlegrounds.According to the poll, 43 percent of Pennsylvanians said both men were “too old to serve another term.” An analysis of that data for The New York Times showed that Mr. Biden led Mr. Trump among those voters by 66 percent to 11 percent. Among all voters in the state, the two men were in a statistical tie.Berwood Yost, the director of the Franklin & Marshall poll, said that Mr. Biden’s wide lead among voters who were worried about both candidates’ ages could be explained partly by the fact that Democrats are much more likely than Republicans to identify age as a problem for their party’s leader. “The age issue is one that if Trump gets tarred with the same brush as Biden, it really hurts him,” Mr. Yost said.Steven Cheung, a spokesman for the Trump campaign, noted that the former president maintained a commanding lead in Republican primary polls and that in the general election, several recent polls had shown Mr. Trump with slight leads over Mr. Biden.“None of these false narratives has changed the dynamics of the race at all — President Trump still dominates, because people know he’s the strongest candidate,” Mr. Cheung said. “The contrast is that Biden is falling onstage, mumbling his way through a speech, being confused on where to walk, and tripping on the steps of Air Force One. There’s no correcting that, and that will be seared into voter’s minds.”Mr. Trump’s rhetorical skills have long relied on a mix of brute force and a seemingly preternatural instinct for the imprecise. That beguiling combination — honed from a lifetime of real estate negotiations, New York tabloid backbiting and prime-time reality TV stardom — often means that voters hear what they want to hear from him.Mr. Trump’s speaking style has often meant that his supporters, or voters who are open to backing him, hear what they want to hear from him. Jordan Gale for The New York TimesTrump supporters leave his speeches energized. Undecided voters who are open to his message can find what they’re looking for in his pitch. Opponents are riled, and when they furiously accuse him of something they heard but that he didn’t quite precisely say, Mr. Trump turns the criticism into a data point that he’s unfairly persecuted — and the entire cycle begins anew.But Mr. Trump’s latest missteps aren’t easily classified as calculated vagueness.During a Sept. 15 speech in Washington, a moment after declaring Mr. Biden “cognitively impaired, in no condition to lead,” the former president warned that America was on the verge of World War II, which ended in 1945.In the same speech, he boasted about presidential polls showing him leading Mr. Obama, who is not, in fact, running for an illegal third term in office. He erroneously referred to Mr. Obama again during an anecdote about winning the 2016 presidential race.“We did it with Obama,” Mr. Trump said. “We won an election that everybody said couldn’t be won, we beat …” He paused for a beat as he seemed to realize his mistake. “Hillary Clinton.”At a Florida rally on Oct. 11, days after a brutal terrorist attack that killed hundreds of Israelis, Mr. Trump criticized the country for being unprepared, lashing out at its prime minister, Benjamin Netanyahu. Mr. Trump appears to have soured on Mr. Netanyahu, once a close ally, after the Israeli leader congratulated Mr. Biden for winning the 2020 election.In the same speech, Mr. Trump relied on an inaccurate timeline of events in the Middle East to criticize Mr. Biden’s handling of foreign affairs and, in the process, drew headlines for praising Hezbollah, the Iranian-backed militant group.Last week, while speaking to supporters at a rally in New Hampshire, Mr. Trump praised Viktor Orban, the strongman prime minister of Hungary, but referred to him as “the leader of Turkey,” a country hundreds of miles away. He quickly corrected himself.At another point in the same speech, Mr. Trump jumped into a confusing riff that ended with him telling supporters, “You don’t have to vote — don’t worry about voting,” adding, “We’ve got plenty of votes.”Mr. Cheung, the Trump campaign spokesman, said the former president was “clearly talking about election integrity and making sure only legal votes are counted.”Under Mr. Trump, the Republican Party has been dealt a series of electoral defeats since 2016. Doug Mills/The New York TimesIn a speech on Saturday, Mr. Trump sounded as if he were talking about hummus when he mispronounced Hamas (huh-maas), the Islamist group that governs the Gaza Strip and carried out one of the largest attacks on Israel in decades on Oct. 7.The former president’s pronunciation drew the attention of the Biden campaign, which posted the video clip on social media, noting that Mr. Trump sounded “confused.”But even Republican rivals have sensed an opening on the age issue against Mr. Trump, who has maintained an unshakable hold on the party despite a political record that would in years past have compelled conservatives to consider another standard-bearer. Mr. Trump lost control of Congress as president; was voted out of the White House; failed to help deliver a “red wave” of victories in the midterm elections last year; and, this year, drew 91 felony charges over four criminal cases.Nikki Haley, the 51-year-old former governor of South Carolina, opened her presidential bid this year by calling for candidates 75 or older to pass mental competency tests, a push she has renewed in recent weeks.On Saturday, Ms. Haley attacked Mr. Trump over his comments about Mr. Netanyahu and Hezbollah, suggesting in a speech to Jewish donors in Las Vegas that the former president did not have the faculties to return to the White House.“Let me remind you,” she added with a small smile. “With all due respect, I don’t get confused.”Jazmine Ulloa More

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      Trump Is Still Far Ahead in Iowa Poll, With Haley Matching DeSantis for 2nd

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      Former President Donald J. Trump leads his closest competitors by 27 percentage points in a new Des Moines Register poll, but Nikki Haley has surged to tie Ron DeSantis.Former President Donald J. Trump still has a huge lead in Iowa, according to a poll released Monday, but Nikki Haley has surged to tie Gov. Ron DeSantis of Florida for a distant second place.Mr. Trump has the support of 43 percent of voters likely to participate in Iowa’s first-in-the-nation Republican caucuses in January, the new Des Moines Register/NBC News/Mediacom poll found — about the same as the 42 percent he had in the same poll in August.Mr. DeSantis and Ms. Haley, the former governor of South Carolina and former United Nations ambassador, are tied at 16 percent. That is a decline of three percentage points for Mr. DeSantis and an increase of 10 points for Ms. Haley, driven in part by increasing support for Ms. Haley among independent voters.The poll was conducted by J. Ann Selzer and has a margin of error of plus or minus 4.9 percentage points.Behind Ms. Haley and Mr. DeSantis are Senator Tim Scott of South Carolina at 7 percent, the entrepreneur Vivek Ramaswamy and former Gov. Chris Christie of New Jersey at 4 percent, and Gov. Doug Burgum of North Dakota at 3 percent. None of those candidates have moved significantly since the August poll.The new survey was conducted before former Vice President Mike Pence dropped out of the race on Saturday. He had only 2 percent support — down from 6 percent in August — and his supporters were redistributed to their second-choice candidates in the final results. More

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      Why Less Engaged Voters Are Biden’s Biggest Problem

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      His weakness is concentrated among those who stayed home in the midterms but who may show up in 2024.Higher turnout is not necessarily positive for Democrats. Adria Malcolm for The New York TimesIf you’re looking to reconcile the surprisingly strong Democratic showing in the midterm elections with President Biden’s weakness in the polls today, consider the political attitudes of two groups of respondents from New York Times/Siena College polls over the last year.First, let’s consider the 2,775 respondents from Group A:It’s relatively old: 31 percent are 65 or older; 9 percent are under 30.It’s split politically: 33 percent identify as Republicans compared with 31 percent who consider themselves Democrats. About 72 percent are white. Black and Hispanic respondents are at 9 percent each.It’s relatively well educated: 41 percent have a college degree. Next, let’s look at the 1,534 respondents from Group B:It’s relatively young: 26 percent are 18 to 29; 17 percent are 65 or older.It’s relatively Democratic: 26 percent identify as Democrats, compared with 19 percent who identify as Republicans. Only 54 percent are white; 13 percent are Black and 19 percent are Hispanic.Just 28 percent have a college degree.Mr. Biden probably won Group B by a comfortable margin in the 2020 presidential election, whether based on fancy statistical models or based on what those respondents told us themselves.But it’s actually Group B that backs Donald J. Trump in Times/Siena polling over the last year. Mr. Trump leads Mr. Biden, 41-39, among Group B respondents, while Group A backs Mr. Biden, 47-43.OK, now the reveal:“Group A” is people who voted in the 2022 midterm elections.“Group B” is people who did not vote in the 2022 midterms.Is this a surprising finding? Yes. But it also makes sense of a lot of what’s going on in the polling today.Mr. Biden may be weak among young, Black and Hispanic voters today, but that weakness is almost entirely concentrated among the voters who stayed home last November. As a consequence, Democrats paid little to no price for it in the midterms, even as polls of all registered voters or adults show Mr. Biden struggling mightily among these same groups against Mr. Trump.These less engaged voters might just be the single biggest problem facing Mr. Biden in his pursuit of re-election, the Times/Siena data suggests. If there’s any good news for Mr. Biden, it’s that his challenge is concentrated among voters who still consider themselves Democrats — a group that, in theory, ought to be open to returning to the president’s side.Whom Voters Say They’ll Support in 2024 More