Minnesota Justices Stay Coy On Whether They Can DQ Trump

Justices on the Minnesota Supreme Court greeted arguments to disqualify President Trump from the ballot with a mixture of skepticism and interest at a Thursday hearing, leaving the path forward for the effort an open question.

Five justices of the state Supreme Court remained coy throughout the hearing, as a group of Minnesota voters represented by the good government group Free Speech for People sought to persuade the court that they had the authority to hold an evidentiary hearing to determine whether Trump engaged in an insurrection.

The justices showed interest in holding a hearing, with Chief Justice Natalie Hudson remarking at several points that the hearing could determine whether the court would be able to remove Trump from the ballot under the Constitution’s Disqualification Clause.

But Hudson, along with Associate Justice Paul Thissen, was careful to grill both sides. She began oral arguments by prodding Free Speech for People attorney Ron Fein over whether the court even had a place in deciding if the Jan. 6 attack on the Capitol disqualified Trump.

“You have the potentiality of the different states deciding this issue differently, whether different states have the right to determine who is eligible for national office,” she remarked. Hudson cited an obscure 1869 case, In Re: Griffin, in which then-Supreme Court Justice Salmon Chase found that Congress needed to pass further legislation in order to disqualify people who engaged in insurrection; Trump’s attorneys have used the case to support their side.

“You have the possibility, as Justice Chase said, for chaos,” she remarked.

That question – whether the 14th Amendment is self-executing and therefore does not need further congressional action – went to the heart of the issues discussed at the hearing.

The justices also focused on whether they should dismiss the whole matter as a “political question,” that is, a discretionary issue for another branch which is beyond the powers of the judiciary to determine facts on and review. Trump has pushed in his briefing for the political question argument, and an attorney for the former president remarked at one point during the hearing that “if this were to be the first decision that someone engaged in an insurrection, it might not be the last.”

But what justices ignored was almost more revealing.

The court ordered the hearing in part to discuss threshold questions around the Disqualification Clause, leaving it until later to decide whether to order an evidentiary hearing to test whether Trump’s attempt to reverse his 2020 loss met the criteria for engaging in an insurrection. That process is playing itself out now in state court in Denver, Colorado, where a district judge is holding a week-long evidentiary hearing into whether the 2020 Stop the Steal effort qualified.

But at the Thursday hearing in Minnesota, justices seemed less interested in discussing whether they had the jurisdiction to hear the case itself than in finding ways to get to the substance.

Trump attorney Nicholas Nelson emphasized that the decision to disqualify Trump had to be “made elsewhere,” ideally in the impeachment process which acquitted the former president in a February 2021 trial.

Justice Hudson asked Nelson whether he agreed with a case finding that states can choose to exclude ineligible candidates.

Nelson replied that he would, but only “assuming it’s already established that you’re not qualified to be on the ballot.”

“But that’s not what’s going on in this case,” he added.

Justice Thissen then shot back, calling it a “wordsmithing distinction.”

“How do you know if you’re ineligible without determining if you’re eligible?” he asked.

Later, Associate Justice Gordon Moore asked asked Nelson what he thought groups seeking to disqualify Trump would have to prove in order to show him engaging in an insurrection.

Nelson replied that the civil war is the “touchstone,” and went on to describe “organized warfare … oriented towards breaking away from or overthrowing the government.”

That led to a line of questioning over whether an insurrection means civil war, and whether Reconstruction-era amnesties of Confederate officials could obviate the Disqualification Clause, which was passed as part of the 14th Amendment immediately after the Civil War. The vast majority of case law over the clause comes from the Reconstruction era.

Nelson replied that he didn’t know of any events over the past 50 years which would qualify as an insurrection, but added that it doesn’t entirely mean that the clause is a “dead letter.”

“Isn’t that why we need an evidentiary hearing?” Hudson, the chief justice, asked.

Justices wrestled throughout the hearing with other potentially analogous situations in which a candidate would be disqualified. Fein, the Free Speech for People lawyer, raised the example of Barack Obama being barred from running for a third term; both sides pointed to courts finding that a 27-year-old would not meet the age requirement for president.

Attorney Reid LeBeau argued for the Minnesota GOP that those cases don’t involve a factual dispute or any serious effort by a court to answer the question.

“I would agree with you its harder to determine whether someone engaged in insurrection than if someone is 25,” Hudson remarked. “But i’m not sure how to weigh that. And maybe that goes towards petitioners’ argument that we should have an evidentiary hearing.”