The gory details of Jan. 6 — the mobs armed with bear mace and flagpoles-turned-spears, the narrow escape by lawmakers and Vice President Mike Pence, the blood, the injuries, the deaths — got short shrift at Thursday’s oral arguments before the Supreme Court.
The justices spent nearly all of the two-plus-hours in the more abstract world of the legal arguments surrounding the disqualification clause: whether states can enforce it against a federal candidate, whether the president counts as an “officer” under the Constitution, if Congress needs to pass a law to enforce it. The basic facts of why this case came before them — Trump’s actions and speech on and leading up to the most violent coup attempt since Reconstruction — faded into the background.
Given the liberals’ unusual alignment with their right-wing colleagues on some of the central questions, that omission may ultimately play to the detriment of the side fighting to uphold the Colorado Supreme Court’s disqualification ruling.
It also somewhat breaks with the briefing on the case, where many pages were devoted to whether Jan. 6 constituted an insurrection under this clause and, if so, whether Trump’s role can be considered “engaging” in it.
The first mention of those questions came courtesy of Justice Ketanji Brown Jackson nearly an hour into the arguments, and the harshest description of the events that transpired from Trump’s lawyer, Jonathan Mitchell, in response.
“The Colorado Supreme Court concluded that the violent attempts of the petitioner’s supporters in this case to halt the count on January 6 qualified as an insurrection as defined by Section 3,” Jackson said, asking whether Mitchell agreed.
The two briefly sparred on Mitchell’s argument that it didn’t qualify — “a chaotic effort to overthrow the government is not an insurrection?” she asked incredulously, when he said the effort had to be “organized” — but he still concluded by making the strongest condemnation of Jan. 6 raised throughout the arguments.
“This was a riot — it was not an insurrection — the events were shameful, criminal, violent, all of those things, but it did not qualify as an insurrection as that term is used in Section 3,” he said.
Minutes after that colloquy, Colorado petitioners’ lawyer Jason Murray nodded at the events in his opening: “For the first time since the War of 1812, our nation’s capital came under violent assault. For the first time in history, the attack was incited by a sitting President of the United States to disrupt the peaceful transfer of presidential power.”
But that was largely it. The justices stayed far away from the details of Trump’s involvement and the attack itself, and Murray — his opportunities limited by the justices’ bombardment of questions about states’ ability to enforce the disqualification clause — didn’t press it.
This case offers the justices a variety of procedural offramps that it long seemed likely they’d prefer to take if they wanted to come down against disqualification. If it gives them a similar result, why not use states’ inability to enforce the clause or Trump not counting as an officer, rather than delivering a much more charged ruling replete with details about the Jan. 6 attack and Trump’s culpability?
But by losing that piece, Colorado also lost its most compelling argument: the horror of having an insurrectionist clamber back into the White House after siccing his supporters, armed and deluded, on Congress, to take back by force an election he convinced them he’d won.
