Three Big Legal Questions

There are still court cases that could upend this year’s presidential election, but the one involving Donald Trump’s eligibility to be on the ballot doesn’t seem likely to do so.

In a two-hour oral argument at the Supreme Court yesterday, nearly all justices appeared skeptical of Colorado’s effort to keep Trump off the ballot. Colorado officials have argued that his role in the Jan. 6 attack on Congress makes him an insurrectionist and that the 14th Amendment bars insurrectionists from the presidency. Maine has also moved to bar Trump, and other states would likely follow if the Supreme Court were to allow it.

The legal issues are complex, and we walk through them below. But the justices are surely considering a larger political question, too. As Adam Liptak, who covers the Supreme Court for The Times, told us yesterday:

Donald Trump is accused of doing grave wrongs in trying to overturn the election. But who should decide the consequences of that? Should it be nine people in Washington? Should it be individual states? Should it be Congress? Or should it be the electorate of the United States, which can, for itself, assess whether Trump’s conduct is so blameworthy that he should not have the opportunity to serve another term?

As Neal Katyal, a former Obama administration official who argues before the Supreme Court, said yesterday, “This argument did not go well for the Trump challengers.”

Officially, the case involves Colorado’s Republican primary, which is scheduled for March 5, less than four weeks away. Many legal experts expect the court to rule quickly (as this story explains) and to issue a broad decision that applies to all states.

Here is our guide to the three biggest legal questions:

1. Who is an officer?

The best known parts of the 14th Amendment, which was ratified after the Civil War, bestowed citizenship on people who had been enslaved and said states must provide equal legal protection to all residents. But the amendment also included a provision to prevent former Confederates from holding office. The provision said that any “officer” of the U.S. who had taken an oath to support the Constitution and then “engaged in insurrection or rebellion” could not hold future office.

Part of the debate at the Supreme Court yesterday revolved around whether the president is an officer. To some legal scholars, the answer is obviously yes. “The meaning of ‘officer’ in the 1780s was the same meaning that it has today,” said Jason Murray, the lawyer representing Colorado voters who want to bar Trump.