The ball is now in the U.S. Supreme Court in multiple Trump, 2024 election cases
Colorado ruling the latest thorny issue Supreme Court may have to decide for 2024
The U.S. Supreme Court, already scheduled to make rulings on a number of consequential issues in the coming weeks, is now in line to hear cases that will impact Donald Trump's candidacy in the 2024 presidential election.
Trump faces four separate criminal indictments related to his conduct before, during and after his presidential term, with three scheduled for trial between early March and late May. Supreme Court opinions, as well as the crowded court schedule, could upend those dates.
While Trump has enjoyed substantial leads in most Republican primary polls, he could bleed support that would be critical in a general election if he was convicted by a jury of a felony — in a Reuters/Ipsos poll last week, 31 per cent of Republican respondents said they wouldn't vote for him in those circumstances.
Trump has branded each case as politically motivated, disparaging individual prosecutors and the Justice Department in fiery remarks at rallies and on social media. Some of those comments have led to gag orders limiting what he can say — a First Amendment issue that could be yet another question for the top court to consider.
Below are the top election-related issues — so far — that the Supreme Court could be, or will be, tackling.
The 14th Amendment question
On Tuesday, Trump was disqualified by a 4-3 decision from Colorado's presidential primary ballot under Section 3 of the 14th Amendment of the U.S. Constitution. Enacted after the Civil War, it bars any "officer of the United States" who has taken an oath to abide by the constitution from holding office again if they've engaged in "insurrection or rebellion."
In a speech on Jan. 6, 2021, Trump implored supporters to march to the U.S. Capitol in Washington, D.C., to help prevent his own vice-president from certifying Joe Biden's 2020 election win. It led to a riot. While Trump at one point urged them to be peaceful, prosecutors are focused on an hours-long period where he did little to discourage his supporters from leaving the Capitol building, or call for calm even as the widespread violence — which proved to be deadly — was apparent.
Trump "placed no call to any element of the U.S. government to instruct that the Capitol be defended," Republican Liz Cheney said last year in a House committee probe of the attack.
Chris Galdieri, a politics professor at Saint Anselm College in New Hampshire, said that while Section 3 has been invoked before — including in 2022, concerning a county commissioner in New Mexico — Tuesday's ruling is nonetheless momentous given that the constitutional provision has never been invoked for a presidential candidate.
"I think this has sort of been lurking in the background with Trump, not just since Jan. 6, but since it became clear he intended to run again in 2024," Galdieri told CBC News.
Meanwhile, a ruling in Michigan that has kept Trump on the ballot is being appealed to the state's top court, while Minnesota's Supreme Court ruled he should stay on their ballot.
Colorado officials paused their ruling pending review by the U.S. Supreme Court, which Trump said he will seek.
Galdieri said it will be a challenging issue for the Supreme Court.
"My guess is this court is probably going to try to find some way to leave his name on the ballot and probably say this decision should be left up to the voters and not the courts," he said. "But that's a decision that really would be tough to square with the plain language and the plain meaning of the 14th Amendment."
The immunity question
Trump's lawyers have argued in legal filings that former presidents can't face criminal charges for conduct related to their official responsibilities. It's an argument that has ramifications for the federal election interference case brought by special counsel Jack Smith, as well as a case related to the 2020 election brought by Georgia's prosecutors in Fulton County.
Smith has asked the U.S. Supreme Court to bypass a federal appeals court and immediately rule on the immunity claim.
Constitutional law expert Steve Vladeck has said that appeals courts have been bypassed in such a manner 19 times since 2019. In addition to primary election and Trump court dates, Vladeck said that Smith is mindful of the Supreme Court's calendar — they break between July and September, by which time the two political parties will have nominated their presidential candidates.
The bottom line of Jack Smith's <a href="https://twitter.com/hashtag/SCOTUS?src=hash&ref_src=twsrc%5Etfw">#SCOTUS</a> filing is that he wants to ensure, one way or the other, that the issue of Trump's constitutional immunity from the January 6-related prosecution is conclusively resolved by the end of the Supreme Court's *current* term (i.e., June 2024).
—@steve_vladeckIn a legal filing, Smith characterized the Trump team's view on immunity as "profoundly mistaken." The immunity claim has already been rejected in more than one Trump-related civil case, and courts have so far rejected arguments from Trump's former chief of staff Mark Meadows that similar campaign-related activities that have led to legal scrutiny were official federal government business.
The obstruction question
The Supreme Court has said that in March or April it would review a charge of obstruction of an official proceeding, pertaining to three people charged in connection with the 2021 Capitol riot. A district judge in Pennsylvania had earlier ruled that prosecutors had stretched the law beyond its scope in one of the applicable cases.
Among the four counts special counsel Smith has sought in the federal election interference case, Trump faces charges of conspiracy to obstruct an official proceeding as well as attempt to obstruct an official proceeding.
Barbara McQuade, a law professor at the University of Michigan, told Reuters she expected Trump's legal team to push for a postponement of the March 4 trial date until the Supreme Court issues an opinion on obstruction, as it "has been his strategy throughout all of these cases."
McQuade said that the Supreme Court agreeing to review an issue in one case typically would not be a basis for pausing a separate case.
Whither Justice Thomas?
Despite the fact that six of the nine Supreme Court justices were nominated by Republican presidents — three by Trump himself — the top court declined to take up his many spurious 2020 electoral fraud claims.
It's not clear if all nine justices will rule on every case that affects Trump this time. As first reported in the Washington Post, House Democrats have written Justice Clarence Thomas, urging him to recuse himself from any Supreme Court consideration of a Trump immunity bid.
The Democrats cited a newly enacted ethical code of conduct that states that "a justice should disqualify himself or herself in a proceeding in which the justice's impartiality might reasonably be questioned," including instances in which a justice knows their spouse has "an interest that could be substantially affected" by the decision or could be a material witness.
Thomas's wife, Ginni, attended the rally Trump held shortly before thousands stormed the Capitol on Jan. 6, 2021, and she sent text messages to senior White House officials urging them to prevent a Biden win, including one in which she complained to Meadows that the election was a "heist."
Jill Wine-Banks, former assistant special prosecutor during the Watergate hearings, told CBC News Ginni Thomas's activities represent a "clear conflict of interest," but that she doubted Thomas would recuse.
Thomas has not responded to the Democrats' letter or Post report at the time of this writing. In October, he recused himself from the court's decision related to a potential case involving John Eastman, who was central to alleged and legally dubious efforts to keep Trump in office after the 2020 election.
With or without Thomas, the Supreme Court justices could be among the top newsmakers of 2024, given the stakes.
Should Trump win the election and attempt a legally untested self-pardon from criminal consequences after inauguration, they could also be among the top newsmakers of 2025.
Corrections
- An earlier version indicated that the 14th amendment clause was cited in a New Mexico case this year. In fact, that occurred in 2022.Dec 22, 2023 6:06 AM ET
With files from Reuters and the Associated Press