Photo: Matt Rourke Associated Press Former President Donald Trump faces reporters during a press briefing in Londonderry, New Hampshire, January 23, 2024.
Fabien Deglise
7:04 p.m. Analysis
- United States
Big legal week for Donald Trump who, after suffering a major setback on his presidential immunity in a federal appeals court on Tuesday, will see the question of his eligibility for next November's presidential election heard Thursday at the United States Supreme Court.
The highest American court is indeed preparing to hear arguments on the legitimacy of removing the populist's name from the Colorado ballots because of his participation in the January 6, 2021 insurrection against the Capitol. The state Supreme Court ruled last December that a provision of the U.S. Constitution allows local election officials to do so.
This is the first time in the country's history that its high court must examine this constitutional point, which has been forgotten for more than 100 years, the reading and interpretation of which are become a major issue as Donald Trump establishes himself as the Republican favorite in the electoral cycle which has just begun in the United States.
What will the Supreme Court look at ?
The court will examine the 14th Amendment to the Constitution, which has until now found itself at the heart of the development of law and American democracy on questions of civil rights or privacy. Among others.
Section 3 of this amendment ratified in 1868, in the aftermath of the Civil War, had received very little attention until the end of 2020. This provision aims to prevent former elected officials or public office holders who have “engaged in an insurrection” to regain power. The march of Donald Trump supporters, launched by the former president against the American legislative power on January 6, 2021, unfortunately gave it a new facelift.
“I am very happy to see that the Supreme Court will finally rule on this question,” said in an interview with Devoirthis week Gerard Magliocca, professor of law at Indiana University, who was one of the first to recall this section 3 to the present, on December 29, 2020, barely eight days before this insurrection aimed at overturn the certification of the vote cast during the presidential election in favor of Joe Biden. “It is very important to decide whether Donald Trump can run before the election. »
To (re)read
- Appeals court rejects Donald Trump's request for criminal immunity
- Election year begins with political violence in the United States
- Five questions to understand Trump's disqualification in Colorado
Seized by a group of six Republican and independent voters, the Colorado Supreme Court ruled last December, by four judges to three, that the former president had indeed taken part in an insurrection and must, for for this reason, see his name removed from the ballot papers for the November presidential election.
A few days later, the Democratic Secretary of State of Maine also invoked this constitutional provision to in turn exclude Donald Trump from the vote in this corner of New England. Both decisions have been temporarily stayed pending a decision by the United States Supreme Court.
What arguments will the parties involved in this cause defend ?
The citizens' lawyers who brought their case to the Colorado courts relied heavily on the work of the bipartisan parliamentary commission charged with investigating January 6. His report established the responsibility of the ex-president in this attempt to prevent a peaceful transition of executive power by seeking to prevent the certification of the vote by American elected officials.
According to them, section 3 of the 14th amendment was also tested in September 2022 on the commissioner of a rural county in New Mexico – Couy Griffin, that's his name -, dismissed from removed from office by a state judge after being convicted of trespassing on Capitol Hill on January 6, 2021. He was the leader of an insurrectionist group called the Cowboys for Trump< /i>. This was the first time in over 100 years that this point of the Constitution had been used. The man took this decision to the Supreme Court.
The populist billionaire's defense team will certainly seek to play on the 111 words that make up this section 3, emphasizing for their part that the sanction, according to the text, targets many public office holders and of officers of the United States, but without ever clearly mentioning the functions of president or vice-president. Trump's lawyers could also argue that the ex-president pledged to “preserve, protect, and defend the Constitution” by taking the oath of office. However, section 3 records the fact of having participated in an insurrection after taking an oath to “support” this constitution. A difference in the verb which should avoid a sanction, they are convinced.
14th This is the amendment to the Constitution that the Supreme Court will consider.
For Donald Trump, “the Colorado Supreme Court exceeded the limits of its authority by interpreting state law, and doing so poorly that it betrayed” the provisions of the legislature, wrote Derek Muller, a law professor at the University of Notre Dame, who has closely followed this issue, in a blog post on Friday. “But things went badly for Trump, [who] lost on the merits in the only two jurisdictions,” Colorado and Maine, where the US Constitution was turned against him, thus foreshadowing a decision that could be unfavorable to him within the Supreme Court.
His lawyers will also seek to argue that the ex-president is not an insurrectionist since he did not force the doors of the Capitol on January 6 — an idea by the way politically defended this week, on the eve of the first hearings of the Supreme Court, by several of its political allies within the American legislative apparatus. On Tuesday, around sixty of them unveiled a resolution affirming that Donald Trump “did not take part in an insurrection or rebellion against the United States.” With its very thin and chaotic Republican majority, it is not obvious that the House of Representatives will succeed in passing it.
What could the Supreme Court decide ?
With this case, the country's high court is placed at the very uncomfortable intersection of law and politics, a collision point not particularly appreciated by the nine judges who make up this body. However, she has several options that would prevent her from making a final decision, despite the fact that both parties insist on the importance of ruling on Donald Trump's eligibility before the next presidential election is held.
The United States Supreme Court could argue that the case is not mature enough to make a decision. Or, rule only on Trump's electability in Colorado, but not elsewhere in the country. It could also put the fate of the populist in the hands of the government, Congress or even those of the voters.
Section 3 of the 14th Amendment allows elected officials to overturn an ineligibility ruling against a former United States officer by a two-thirds vote of the House, a highly unlikely scenario if it were to be applied to Donald Trump , and this, because of the extreme divide between the forces present in Congress.
“The Supreme Court could also say that a decision on its part would only be required if Trump wins the November election,” adds American constitutional lawyer Gerard Magliocca. “But I hope she doesn’t take that route and instead decides whether she’s eligible or not. »
Currently, the ex-president's right to put his name on a ballot is contested in 35 states across the country, according to a review by the New York Times.
“The impact of the Supreme Court's decision will be enormous,” said Mr. Magliocca, whether Trump is found fit or unfit to run, according to him, since the highest court of the country will thus be forced to address the highly delicate subject of the 2020 presidential elections.
The former president justified the attack on the Capitol by citing massive electoral fraud which, four years later, still contradicts the facts.