5 ways the Supreme Court may try to defuse its newest Trump bomb

After years of dodging Donald Trump-related questions, the Supreme Court is now facing the most consequential one of all: Is he an insurrectionist who is barred by the 14th Amendment from running for president?

Directly answering either “yes” or “no” would spark white-hot political fallout for an already embattled court. But in a case packed with technical and untested legal issues, there are still ways the justices could try to wriggle out of a definitive ruling that either kicks Trump off the ballot or hands him an unqualified legal and public-relations victory.

Chief Justice John Roberts and his colleagues will no doubt be studying these off-ramps as the court prepares for an expedited Feb. 8 argument in Trump’s appeal of a Colorado decision that deemed him disqualified for his actions leading up to the Jan. 6, 2021, attack on the Capitol.

“I certainly could understand if the court would like any of the procedural avenues that would avoid squarely addressing any of the merits. As a matter of first instinct, I think that would be attractive,” said Ned Foley, an election law professor at Ohio State University.

“It may help the court out from that perspective, but it may hurt the country,” he added.

That’s because a decision that seems overly technical or simply postpones addressing the central issue — Trump’s eligibility under the Constitution to hold public office again — could fuel chaos if Trump wins the election and Democrats then try to raise the insurrection argument to block him from retaking office.

“The time to resolve a disqualification issue is before the ballots are cast, not afterwards,” Foley said.

So, just how could the justices try to accomplish this Houdini-like feat?

Here’s POLITICO’s look at the most likely off-ramps for the justices and the potential pros and cons of each:

POTUS isn’t an ‘officer’

The 14th Amendment’s “insurrection clause” lists various positions that cannot be held by anyone who “engaged in insurrection” after taking an oath to “support the Constitution.” Those positions include senators, representatives, and presidential and vice-presidential electors.

Conspicuously, the clause does not explicitly list the presidency itself as a covered position — but it does contain a catch-all provision barring insurrectionists from holding “any office, civil or military, under the United States.”

Trump, of course, denies that he engaged in or promoted any insurrection. But his lawyers also have argued that it’s a moot point because the insurrection clause doesn’t apply to him anyway. His lawyers give two reasons: The presidency is not an “office” covered by the catch-all provision, and the presidential oath that Trump took in 2017 is not the type of oath to “support the Constitution” that the insurrection clause mentions.

If the Supreme Court adopts either theory, it would leave Trump on the ballot without having to decide whether he engaged in insurrection by undermining the 2020 election results and stoking the Jan. 6 riot.

The upside:

It’s arguably the cleanest of the Supreme Court’s options. A narrow, technical reading of the clause could get support from both Republican and Democratic appointees, or even potentially unanimous backing. And it would likely be a complete resolution to the 14th Amendment issue because it would preclude efforts to knock Trump off the ballot in other states, and it would shut down post-election challenges to Trump’s eligibility to serve if he won in November.

The pitfalls:

A ruling that turns on the meaning of “office” or “officer” would be hyper-technical and hard for average voters to understand. Moreover, scholarly consensus seems to favor the president being covered by the amendment, as does common sense. And a decision declaring presidents not to be federal officers could have unintended legal consequences, even for pending civil lawsuits against Trump.

“Such a broad holding could have significant, unwarranted effects on longstanding practices involving several other provisions of the Constitution that use such a term,” said Georgetown University law professor Marty Lederman, who served as the No. 2 in the Justice Department’s Office of Legal Counsel earlier in the Biden administration. The clause banning officials taking so-called emoluments from foreign governments, the prohibition on religious tests for federal offices and the provision allowing the Senate to disqualify impeached officers from future posts all use similar language, he noted.

Lederman said those complications don’t mean the justices shouldn’t go the the president’s-not-an-officer route, but they should disclaim any impact on other parts of the law. “They would probably want to cabin it to this clause,” he said.

Maybe there ought to be a law, but there isn’t

Another major ambiguity in the insurrection clause is that the text is silent about who decides whether a person is an insurrectionist. (It does say Congress can restore an individual’s eligibility by a two-thirds vote of both chambers, but not who decides someone is ineligible in the first place.) In legal terms, the question is whether the disqualification provision is “self-executing” or whether Congress has to pass a law for it to apply.

Congress did pass such a law in 1870, but it was largely superseded by another law in 1872 and taken off the books in 1948. Trump’s lawyers argue that, without that kind of legislative measure, no one at any level of government is empowered to use the insurrection provision to kick him off ballots or deny him office.

“If the court is to use this not-self-executing issue as an off-ramp, it seems to me they almost necessarily have to leave it open for Congress to deal with later on,” Foley said. “It matters how they do it.”

The upside:

A ruling along these lines might close the door on post-election challenges to Trump’s eligibility, and it would leave Congress space to clarify the issue in the future.

The pitfalls:

Punting the question to Congress is more complicated than it appears at first glance. Even if the insurrection clause isn’t self-executing, it’s unclear whether Congress is truly the only entity empowered to enforce it. Do states, for example, have authority to pass their own laws to enforce the provision? What if their court systems find the anti-insurrection language enforceable under existing state laws on ballot qualifications? After all, that’s essentially what the Colorado Supreme Court concluded in the Trump case.

And if Congress is the only body with authority to enforce the insurrection bar, does that mean states can’t enforce it even for state lawmakers or local government positions?

This isn’t fair to Trump

While there are several variations of this argument, the basic thrust is that the trial that led the Colorado Supreme Court to rule that Trump should be kicked off the ballot there didn’t do enough to safeguard Trump’s rights and allow him to contest the allegations that he led an insurrection.

An aggressive version of this claim asserts that the only way to knock Trump out of the election would be for him to be convicted of the specific federal crime of leading a “rebellion or insurrection.” While Trump is facing four federal felony counts related to his efforts to overturn the 2020 election results, none is that particular charge, even though the House Jan. 6 committee urged the Justice Department to charge him with it. (And, of course, he hasn’t been convicted.)

A more modest iteration of the argument was put forward by one of the Colorado Supreme Court’s dissenting justices, who derided as “substandard” the procedures used for Trump’s trial in Colorado — which was a civil suit proceeding under the state’s election law, not a criminal trial.

“Even if we are convinced that a candidate committed horrible acts in the past — dare I say, engaged in insurrection — there must be procedural due process before we can declare that individual disqualified from holding public office,” Justice Carlos Samour wrote. “In my view, what transpired in this litigation fell woefully short of what due process demands.”

Perhaps the U.S. Supreme Court will agree and hold that Trump has not been proven in court to meet the threshold of engaging in insurrection.

The upside:

Even some Americans hostile to Trump may be sympathetic to the idea that he’s entitled to a criminal trial or some similar process before being blocked from the ballot.

The pitfalls:

It seems clear from history that the drafters and ratifiers of the 14th Amendment — which was adopted in the wake of the Civil War — were trying to block all rebels from federal office, even those who hadn’t been convicted of crimes or had been pardoned.

“I don’t think it has to be a criminal trial. I think the history of [the clause] is abundantly clear on that,” Foley said.

With so many of the Supreme Court’s current justices touting originalism as their judicial philosophy, latching onto this argument could be viewed as a profoundly anti-originalist approach.

It’s too soon to declare Trump ineligible

The justices might conclude that it’s simply too early to weigh in on Trump’s eligibility. Perhaps the 14th Amendment’s bar kicks in only during the general election that picks the office-holder, not during primaries that determine party nominations. Or perhaps the amendment merely bars insurrectionists from taking office and cannot actually be used to prevent them from running for office.

The Colorado Republican Party has put forward a version of this argument by contending that the state is infringing on the GOP’s First Amendment rights by trying to dictate which names can and can’t appear on the primary ballot.

The upside:

A ruling along these lines would adhere to Chief Justice John Roberts’ oft-stated desire to have the court narrowly interpret the issues before it and not reach out to resolve future disputes until it must. It would take the spotlight off the court — at least for now.

The pitfalls:

It would be an obvious punt, since all the issues seem likely to return before or after the general election, with Trump dominating in the polls and widely expected to win the nomination. It would create a state-by-state patchwork by allowing some states, like Colorado and Maine, to kick Trump off their primary ballots while other states keep him on.

This off-ramp might also be a particular problem for Justice Neil Gorsuch, who as an appeals court judge in 2012 ruled that Colorado could preemptively knock a fringe presidential candidate off the ballot because he wasn’t born a U.S. citizen, as a different part of the Constitution requires.

The case is too hot to handle

When thorny, politically charged issues arise in court, judges sometimes simply declare the cases too political for the legal system to resolve — effectively sending them back to other branches of government.

The justices could invoke this principle, known as the “political question doctrine,” to bow out of the issue of Trump’s disqualification, but doing so would likely leave the Colorado Supreme Court decision in place.

The upside:

It would get the justices entirely out of the heated political fight, and it would avoid contributing to the view that the Supreme Court is hopelessly politically polarized.

The pitfalls:

The doctrine has been in some decline in recent years, with critics arguing that it simply allows judges to dodge tough decisions in controversial cases.

Just over two decades ago, the court’s majority chose to decide the most momentous election-related case in its history, Bush v. Gore, despite dissenting justices warning that the dispute was better left to the other branches of government and the states.

The political question option also amplifies the potential for chaotic challenges to the counting of electoral votes by Congress early next year and increases the possibility of the election being ultimately decided in the House of Representatives.