Return to Transcripts main page

CNN Live Event/Special

Now, Supreme Court Hears Argument in Trump Ballot Case; Court Asks if Congress Needs to First Act Before States Can Enforce Insurrection Ban. Aired 10-10:30a ET

Aired February 08, 2024 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:00:00]

JAKE TAPPER, CNN ANCHOR: I mean, we've already heard Governor Ron DeSantis saying, well, Joe Biden should be kept off the ballot because what's going on at the border is a rebellion or insurrection.

JENA GRISWOLD (D), COLORADO SECRETARY OF STATE: I don't think that saying one party is going to act poorly is a reason not to enforce the law or uphold the United States Constitution. And we do have safeguards. It's the legal system.

In Colorado, I actually did not make the decision. This lawsuit was brought by Republican and unaffiliated voters who did not want a disqualified candidate on the ballot.

There are safeguards, trials. He has had two trials at this point, a district court trial and the Colorado Supreme Court. And ultimately, I think, basically indicating that Republicans are going to act bad is not a reason not to uphold the Constitution.

TAPPER: All right. Jena Griswold, the secretary of state of Colorado, thanks for being here today.

GRISWOLD: Of course. Thank you.

TAPPER: Appreciate it.

The U.S. Supreme Court is about to take up one of the most politically charged cases in modern legal history, one that could potentially upend Donald Trump's 2024 presidential campaign just minutes from now.

The highest court in the land will hear arguments on whether the former president's actions on January 6, 2021 disqualify him from ever holding office. Again, we're going to bring you every word of the arguments live.

This is CNN's special coverage of the Trump ballot battle at the U.S. Supreme Court. I'm Jake Tapper. And we're going to be listening for clues about where the justices might stand on these issues as they begin reviewing the unprecedented decision by the Colorado Supreme Court last December, which found that Trump is, in their view, ineligible to appear on the state ballot.

Colorado court determining that Trump violated the so-called insurrectionist ban in the 14th Amendment to the U.S. Constitution.

My colleague, Kaitlan Collins, is outside the Supreme Court right now as his high-stakes hearing is about to get underway. Kaitlan.

KAITLAN COLLINS, CNN ANCHOR: Yes, Jake. And we're now keeping track of who is going inside for this hearing. We already talked about the attorneys who are going to be in there arguing, including the solicitor general of the state of Colorado.

And, Paula Reid, as we look at this, we know who's in there representing Donald Trump on this behalf, making those arguments, people who are very familiar with the Supreme Court, they are -- many of them clerks for justices previously.

But when it comes to who's also in there on Trump's team, we're getting a bit of an idea of who he's dispatched to go in there, given he himself won't be there. That includes Jason Miller, a political aide, Boris Epshteyn, a political and legal aide to him, and also John Sauer.

And that stuck out to me when I saw that he was seen entering the court, because he is, of course, the attorney who just made that argument about Trump having presidential immunity in front of that federal appeals court, a different courthouse here in Washington. What do you think he's watching for listening to these arguments from the justices?

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: So, I think he's thinking about the own appeal, his own appeal that he's going to have to likely make to these justices, because a couple days ago, he learned that he lost that case before the district court here in Washington. And the district court gave the Trump team just until Monday to tell the high court if they intend to appeal.

Now, we do expect they're going to appeal to the Supreme Court. It's possible they might also ask the full circuit to hear the case. But it's notable, right? The Supreme Court is going to be such an enormous influence in the 2024 election cycle because as soon as they get out of court today, Trump's legal team, they need to go talk about what they're going to do for this immunity appeal.

COLLINS: They've got that Monday deadline.

REID: Exactly. They have to signal to the court what they're going to do. We expect they will appeal. And then the question is, what are the justices going to do with this case?

Sources in and around the Trump legal team say, look, they know that's not really a strong case for them. They're pretty confident they're going to win the ballot eligibility case on the merits, but the idea that presidents have absolute immunity is not something that they believe they could win on here at the high court. They lost at the trial court. They lost at the district court. But we know their legal strategy is really to just delay, delay as long as possible. Because if they do lose, that means Jack Smith can actually bring his federal election subversion case against Trump to trial. So, they're going to try anything they can to delay that outcome. But the big question is, what are the justices going to do with this anticipated appeal? It's unclear if they'll take out the case, if we'll be back here in a few months for another big Trump legal issue.

But his legal team, they have a lot of work to do, and I bet John Sauer is in there really watching the justices and trying to figure out if he can get his case here, even if he's not going to win on the merits, if for no other reason to draw this out a little bit longer, try to get that federal trial passed, pushed past the November election.

COLLINS: Yes, and seeing just of course the political aids there as well being able to report back to Trump.

Paula Reid, thank you. Stay with us as we are going to watch this, Jake, of course, as the Trump team watching to see just how big of a role the Supreme Court is going to play and what their campaign going forward truly looks like.

TAPPER: That's right, and we are not going to get any warning when the oral arguments begin, so I am going to rudely interrupt whoever will be talking at that moment.

[10:05:00]

I apologize ahead of time, and please at home don't think me rude, but that is very important.

Elie, I want to start with you because one of the things that we were discussing is the fact that there is this other case about Donald Trump that is working its way through the system and that has to deal with whether or not he gets immunity for actions he took when he was president.

And I asked, is it possible that the U.S. Supreme Court will either refuse to take up the case, he's already been found by a lower level court, a U.S. appeals court, that he does not have immunity, is it possible that on the same day we'll find in his favor on the case we're going to hear today and he is kept on the ballots and at the same time the court says, but we're not going to hear this other case, meaning he is not immune from prosecution, therefore kind of splitting the difference?

That seems to me based on my limited knowledge of the Supreme Court Chief Justice, the Chief Justice of the United States, John Roberts, something he would like to do because it shows he's an even-handed kind of guy.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: It's absolutely possible. The Supreme Court can issue its rulings whenever it chooses to. So, if it wants to coordinate rulings that way, they can do this.

Bigger picture, Jake, as you said, 2024 is shaping up to be Chief Justice Roberts' nightmare year, because we know from extensive reporting that Jamie and Joan Biskupic and others have done. The one thing Chief Justice Roberts does not want is for his tenure as chief to be seen as the one where the justices inexorably split from one another, conservatives, liberals, never any consensus.

And now he's got these challenges. The two, the one today about whether Trump will appear on the ballot, and the one you were talking about, whether Donald Trump can claim immunity in Jack Smith's criminal case, both of those, inevitably, whether they take them or not, and whichever way they come out, are going to impact the 2024 election.

And one thing I'm watching for today is whether the chief tries to start building some sort of middle ground, some sort of consensus.

LAURA COATES, CNN ANCHOR AND CHIEF LEGAL ANALYST: You know, this is such an important moment. The two cases that you just addressed, one involving immunity, which is an extraordinary case to talk about, that goes to the heart of checks and balances. The very core of our democracy, do we have separation of powers or not? That's one that the court would more likely want to weigh in on because it doesn't have as much as the politics of it.

This one talks about, can Trump be on the ballot? Even if you talk about this from a legal perspective, the average voter, the average viewer, says, well, isn't that inherently political? And I'm still having a little bit of legal PTSD from Bush v. Gore. They don't want to weigh into that, even though it's a very valid question for this court to address. They're going to be cognizant of that. We'll look to see whether they actually ultimately decide this issue in that grounds. They want the off-ramps.

But at some point when push comes to shove, you're going to have to decide issues, even if it's uncomfortable. That's what these nine justice are for.

STEVE VLADECK, CNN LEGAL ANALYST: Well, Jake, I think the real question going to this argument is how does the court view its legacy coming out of these cases, not just the ballot disqualification case, but the immunity case? How does the court actually speak in a voice that's going to persuade people who are not already convinced by that side? Is there any way for this institution, at this moment in our history, to actually bring people together, whether it's on the question of ballot qualification or presidential immunity?

This is why, Jake, I think it's so interesting to think of how these two cases could fit together. Could we see the court handing down a mixed verdict?

GEORGE CONWAY, CONSERVATIVE LAWYER: It's easier to come together in the immunity case than it is in this case. In the immunity case, it's actually relatively simple. And I think that they really could deny certiorari and simply not hear the case.

In this case, it's a little bit harder because, I mean, are you trying to avoid what the 14th Amendment actually says, is going to be the question. And if they are, they're not going to have really good pickings to choose from for the legal method out. And if they go down the route of actually passing on whether or not Donald Trump engaged in insurrection, that's a precarious one too for them. I mean, they normally don't get into that kind of factual determination.

COATES: And they could punt -- excuse me. They could punt to Congress on this, which, of course, Congress add to their plate of things they likely won't get done. They could punt to Congress and say, hold on, you're supposed to create a cause of action.

Remember in a civil rights sort of case, you have the ability, because Congress says you can enforce the rights that are already existing. Those are 1983 cases. They don't have a singular cause of action or a way to sue under Section 3, and the court could very well say, well, without that, we can't even hear this case traditionally. So, that could be a way to get at the issue --

CONWAY: I honestly don't buy that one because the 14th Amendment -- Section 1 of the 14th amendment for example, it prohibits, as I mentioned in the earlier segment, race discrimination. You can sue to enjoin a school district from engaging a race discrimination regardless of whether or not Congress has enacted a statute.

VLADECK: But I think what this gets at though is one of the questions going into today is, is the court trying to speak to the lawyers or is the court trying to speak to the American people? You know, some of the most famous decisions in the Supreme Court's history were actually written deliberately to be accessible to non-lawyers.

Brown versus Board, Chief Justice Warren writes an 11-page opinion that can be reprinted in newspaper --

[10:10:04]

TAPPER: Okay, we have to interrupt. Let's listen in.

JONATHAN MITCHELL, ATTORNEY REPRESENTING DONALD TRUMP: Mr. Chief Justice, and may it please the court. The Colorado Supreme Court held that President Donald J. Trump is constitutionally disqualified from serving as president under Section 3 of the 14th Amendment. The Colorado Supreme Court's decision is wrong and should be reversed for numerous independent reasons.

The first reason is that President Trump is not covered by Section 3 because the president is not an officer of the United States, as that term is used, throughout the Constitution. Officer of the United States refers only to appointed officials, and it does not encompass elected individuals, such as the president or members of Congress. This is clear from the commission's clause, the impeachment clause, and the appointments clause, each of which uses officers of the United States to refer only to appointed and not elected officials.

The second reason is that Section 3 cannot be used to exclude a presidential candidate from the ballot, even if that candidate is disqualified from serving as president under Section 3, because Congress can lift that disability after the candidate is elected but before he takes office. A state cannot exclude any candidate for federal office from the ballot on account of Section 3, and any state that does so is violating the holding of term limits by altering the Constitution's qualifications for federal office.

The Colorado Supreme Court's decision is no different from a state residency law that requires members of Congress to inhabit the state prior to Election Day when the Constitution requires only that members of Congress inhabit the state that they represent when elected.

In both situations, a state is accelerating the deadline to meet a constitutionally imposed qualification, and is thereby violating the holding of term limits. And in this situation, a ruling from this court that affirms the decision below would not only violate term limits but take away the votes of potentially tens of millions of Americans.

I welcome the court's questions.

JUSTICE CLARENCE THOMAS, U.S. SUPREME COURT: Mr. Mitchell, would you -- you didn't spend much time on your argument with respect to whether or not Section 3 is self-executing. So, would you address that? And in doing that, your argument is that it's not self-executing, but then in that case, what would the role of the state be, or is it entirely up to Congress to implement the disqualification in Section 3?

MITCHELL: It is entirely up to Congress, Justice Thomas, and our argument goes beyond actually saying that Section 3 is non-self- executing. We need to say something more than that, because a non- self-executing treaty or a non-self-executing constitutional provision normally can still be enforced by a state if it chooses to enact legislation.

The holding of Griffin's case goes beyond even that by saying that a state is not allowed to implement or enforce Section 3 of the 14th Amendment unless and until Congress enacts implementing legislation allowing it to do so.

So, under Griffin's case, which we believe is correctly decided, the Anderson litigants disagree with us on that point, but if this court were to adhere to the holding of Griffin's case, there would not be any rule for the states in enforcing Section 3 unless Congress were to enact a statute that gives them that authority.

CHIEF JUSTICE JOHN ROBERTS, U.S. SUPREME COURT: Counsel, what if somebody came in to a state secretary of state's office and said, I took the oath specified in Section 3, I participated in an insurrection, and I want to be on the ballot, does the secretary of state have the authority in that situation to say no, you're disqualified?

MITCHELL: No, the secretary of state could not do that consistent with term limits. Because even if the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office and even win election to office and then see whether Congress lifts that disability after the election. This happened frequently in the wake of the 14th amendment where Confederate insurrectionists were elected to Congress, and sometimes they obtained a waiver, sometimes they did not and each house would determine for itself whether to seat that elected insurrectionist because each House is the sole judge of Qualifications of its members.

So, if a state banned even it admitted insurrectionists from the ballot It would be adding to an altering the Constitution's qualifications for office. Because under Section 3, the candidate need only qualify during the time the candidate holds the office to which he's been elected. And under your honor's hypothetical, the secretary of state would be demanding essentially that the candidate obtain a waiver from Congress earlier than the candidate needs to obtain that waiver.

[10:15:04]

ROBERTS: Well, even though it's pretty unlikely, or at least would be difficult for an individual who says, I am an insurrectionist and I had taken the oath, that would require two-thirds of votes in Congress, right?

MITCHELL: Correct.

ROBERTS: Well, it's a pretty unlikely scenario.

MITCHELL: It may be unlikely, but no secretary of state is permitted to predict the likelihood of a waiver because in doing so, they're adding a new qualification to the ability to run for Congress.

And the proper analogy, Mr. Chief Justice, is to state residency laws because the Constitution says that a member of Congress must inhabit the state that he represents when elected. And the lower courts have all held in reliance on term limits that a state election official cannot move that deadline any earlier by requiring the candidate for Congress to inhabit the state.

ROBERTS: So, even if somebody comes in and says, I'm a resident into the secretary of state's office in Illinois, and says, I'm a resident of Indiana, I have been all my life, I want to run for office in Illinois, the secretary of state can't say, no, you can't?

MITCHELL: Well, the question would be, is that person going to inhabit the state when the election is held? So, if the candidate makes clear, perhaps through a sworn declaration or through his own statements, that he has no intention of relocating to that state before Election Day, then the secretary of state would be enforcing an extant constitutional qualification rather than enforcing a new state- imposed qualification.

And that's the key under term limits. Is the state, in any way, altering the criteria for a federal office, either for Congress or for the presidency? And in this situation, the Colorado Supreme Court is going slightly beyond what Section 3 requires, because Section 3, on its face, bans an insurrectionist only from holding it. JUSTICE SONIA SOTOMAYOR, U.S. SUPREME COURT: Counsel, can I stop you a moment and back up a minute? You admitted that the concept of self- executing does generally permit states to provide a cause of action for breaches of a constitutional provision.

MITCHELL: Correct.

SOTOMAYOR: In fact, they do it frequently for taking these clauses. Here's there's no debate that Colorado has placed that -- provided that cause of action. You want to go a step further and say that this, like the treaty clause, requires implementing legislation to permit the state to disqualify an insurrectionist?

MITCHELL: That's correct.

SOTOMAYOR: Under Section 3?

MITCHELL: That's right.

SOTOMAYOR: So, history proves a lot to me and to my colleagues, generally, but there's a whole lot of examples of states relying on Section 3 to disqualify insurrectionists for state offices.

And you're basically telling us that you want us to go two steps further. You want to -- maybe three. You want us to say that self- execution doesn't mean what it generally means. You want us now to say it means that Congress must permit states or require states to stop insurrectionists from taking state office. And so this is a complete preemption in a way that's very rare, isn't it?

MITCHELL: Well, that's -- the only thing I would --

SOTOMAYOR: It's rare under the 14th Amendment.

MITCHELL: Oh, of course it's rare. This is this is a one-off situation. And, Your Honor, the only thing --

SOTOMAYOR: Well, it is one-off, I don't disagree with you, but it's not with respect to how we've defined self-executing.

MITCHELL: We're not asking this court to redefine the concept of non- self-execution. We were careful in our brief not to rely on that phrase. And Griffin's case --

SOTOMAYOR: Right, you are because it's not.

MITCHELL: That's right. And Griffin says --

SOTOMAYOR: Okay. So, now the question is a very different one in my mind. I understand what you're relying on Griffin. Let's just be very clear. Griffin was not a presidential Supreme Court decision.

MITCHELL: That's correct.

SOTOMAYOR: All right? It was a circuit court decision. By a justice who, when he becomes a justice, writes in the Davis case, he assumed that Jefferson Davis would be ineligible to hold any office, particularly the presidency, and treat it, and this is his words, Section 3 as executing itself, needing no legislation on the part of Congress to give it effect.

So, you're relying on a non-presidential case by a justice who later takes back what he said.

MITCHELL: But the key point with Griffin's case and why it's an important precedent, despite everything Your Honor said, it is not a precedent of this court, but Griffin's case provided the backdrop against which Congress legislated the Enforcement Act of 1870 when it first provided an enforcement mechanism for --

SOTOMAYOR: Yes, and it did away with it later.

MITCHELL: It did away with it later. But --

SOTOMAYOR: But that has nothing to say with respect to what Section 3 means.

[10:20:02]

Can we get to the issue, which is I think one that I go back to that I started with, and very briefly, what sense does it say that states can't enforce Section 3 against their own officials?

I think, logically, those are two separate issues in my mind. Can states enforce the insurrection clause against their own office holders? Or can they enforce it against federal officials? Or can they enforce it against the president? Those are all three different questions in my mind.

MITCHELL: And the answer to all three of those questions turns on whether this court agrees with the holding of Griffin's case. If Griffin's case is the proper enunciation of the law, then a state cannot do any of the things Your Honor suggested, unless Congress gives it authority to do so --

SOTOMAYOR: So, a non-presidential decision that relies on policy doesn't look at the language, doesn't look at the history, doesn't analyze anything than the disruption that such a suit would bring, you want us to credit as presidential?

MITCHELL: Because Congress relied on Griffin's case when it enacted the Enforcement Act of 1870 and established --

JUSTICE ELENA KAGAN, U.S. SUPREME COURT: So, Mr. Mitchell, if I may interrupt, just to clarify, I mean, this sounds like your reply brief, where it sounds like you're not making a constitutional argument. You're really making a statutory preemption argument. And is that what you're doing here?

You're not saying that the Constitution gives you this rule. It's the kind of combination of Griffin's case plus the way Congress acted after Griffin's case that gives you the rule? MITCHELL: That's exactly right, Justice Kagan, because we have implementing legislation. Congress took up the invitation provided by Griffin's case and established writs quo warranto in the 1870 Enforcement Act, later repealed them. The only enforcement legislation that's currently on the books is the insurrection criminal statute, Section 2383.

And when Congress made all of these decisions, the initial enactment of the Enforcement Act in 1870, the repeal of the quo warranto provisions in 1948, all of those were made with Griffin's case as the backdrop. The --

KAGAN: Please.

MITCHELL: Well, the understanding was that these congressional established remedies would be exclusive of state court remedies. So, there's not an express statement of preemption in these statutes, but there didn't need to be, because Griffin's case provided the backdrop.

KAGAN: And if I could just understand the argument a little bit better, suppose that we took all of that away, you know, suppose there were no Griffin's case and there were no subsequent congressional enactment, what do you then think the rule would be?

MITCHELL: So, in just as a matter of first principles without Griffin's case, it's a much harder argument for us to make. Because, normally, I mean, every other provision of the 14th Amendment has been treated as self-executing.

What we would argue in that hypothetical that Your Honor has suggested is that there are practical considerations unique to Section 3, that counsel in favor of a rule similar to what Chief Justice Chase spelled out in Griffin's case.

And it goes to, I think, the policy concerns he talks about, where this was a case, Griffin's case involved, a convicted criminal who was seeking a writ of habeas corpus on the ground that the judge who tried his case was an insurrectionist disqualified under Section 3.

And Chief Justice Chase realizes that if he enforces Section 3 in this situation, it would nullify every official act taken not only by this particular judge, but by anyone who was an insurrectionist or arguably an insurrectionist under Section 3.

And that was --

JUSTICE AMY CONEY BARRETT, U.S. SUPREME COURT: Why do you need those consequential concerns, though? I mean, it kind of seems to me that what Justice Kagan is getting at is, why don't you have an argument that the Constitution of its own force, that Section 3 of its own force, preempts the state's ability not necessarily, I think, not to enforce Section 3 against its own officers, but against federal officers, like in a Tarbel's (ph) case kind of way?

MITCHELL: So, there could also be an argument that's more limited. You're suggesting there may be a barrier under the Constitution to a state legislating an enforcement mechanism for Section 3 specific to federal officers. We could rely on precedents such as McClung that says that state courts lack the authority to issue mandamus relief against federal officials and extend their principles here.

BARRETT: Well, why aren't you making those arguments?

MITCHELL: Because that doesn't get us -- that Griffin case --

BARRETT: That only you gets out of state court, it doesn't get you out of federal court?

MITCHELL: Right. And also the holding of Griffin's case went well beyond that because Chief Justice Chase said in this opinion, which, again, provided the backdrop for the congressional enforcement legislation that states had no role in enforcing Section 3 unless Congress was to give them that authority through a statute that they passed, presumed to be signed by the powers (ph).

BARRETT: But your arguments -- sorry.

MITCHELL: No, please, go ahead.

BARRETT: I was just going to add one last thing. I think your argument is a little broader than that, because I think if we accept your position that disqualifying someone from the ballot is adding a qualification, really, your position is that Congress can't enact a statute that would allow Colorado to do what it's done either, because then Congress would be adding a qualification, which it can't do either?

MITCHELL: Well, I don't agree with that, Justice Barrett.

[10:25:00]

Congress is not bound by the holding of term limits. Term limits only prohibits the states from adding additional qualifications or altering the Constitution's qualifications for federal office. It does not purport to restrain Congress.

So, if Congress were to enact implementing legislation that authorized the states to exclude insurrectionists from the ballot, we believe that would be valid enforcement legislation under Section 3 with an important caveat. There has to be congruence and proportionality under this court's precedence.

JUSTICE SAMUEL ALITO, U.S. SUPREME COURT: Well, why would that be an -- why would that be permissible, because Section 3 refers to the holding of office, not running for office? And so if a state or Congress were to go further and say that you can't run for the office, you can't compete in a primary, wouldn't that be adding an additional qualification for serving for president? You must have been free from this disqualification at an earlier point in time than Section 3 specifies.

MITCHELL: I think the answer to your question, Justice Alito, depends on how you interpret the word enforce in Section 5. And some members of this court, such as Justice Scalia, thought that enforce means you can do nothing more than enact legislation that mirrors the 14th Amendment's self-executing requirements, and you can't go an inch beyond that.

That's not the current jurisprudence of this court or allows --

ALITO: No. Or we have to decide whether it's congruent and proportional, and we would get into the question of whether that would be congruent and proportional.

Well, let me shift gear a little bit. I take you to argue, and I think this is right, that the term, self-executing, is a misnomer, as applied here.

MITCHELL: Yes.

ALITO: Very often, when we use the term, what we're referring to is the proposition that a particular provision of the Constitution or a statute in and of itself creates a private right of action. That's not what the issue is here.

MITCHELL: No, that's not the issue here. And sometimes the phrase, self-executing, is used that way. The only thing I would add is sometimes it's used in a different sense. With self-executing treaties or non-self-executing treaties, the issue is whether that treaty has any force as domestic law, whatsoever.

ALITO: Right. But I don't see what is gained by using this term, which is used in different contexts, rather than directly addressing what's involved here, which is the question of who can enforce Section 3 with respect to a presidential candidate.

The consequences of what the Colorado Supreme Court did, some people claim, would be quite severe. Would it not permit -- would it not lead to the possibility that other states would say, using their choice of law rules and their rules on collateral estoppel, that there's non- mutual collateral estoppel against former President Trump, and so the decision of the Colorado Supreme Court could effectively decide this question for many other states, perhaps all other states? Could it not lead to that consequence?

MITCHELL: I don't think so because Colorado law does not recognize non-mutual collateral estoppel. And I believe the preclusive effect of the decision would be determined by Colorado law rather than the law of another state.

But I think your question, Justice Alito, gives rise to an even greater concern, because if this decision does not have preclusive effect in other lawsuits, it opens the possibility that a different factual record could be developed in some of the litigation that occurs in other states.

And different factual findings could be entered by state trial court judges. They might conclude, as a matter of fact, that President Trump did not have any intent to engage in incitement or make some other finding that differs from what this trial court judge found. ALITO: Yes, exactly. So this -- in this decision, the trial court in Colorado thought that it was proper to admit the January 6 report and it also admitted the testimony of an expert who testified about the meaning of certain words and phrases to people who communicate with and among extremists, right? Another state court could reach an opposite conclusion on both of those questions?

MITCHELL: Certainly. Other states could conclude that the January 6th report is an admissible hearsay. They might also conclude that statements within the January 6th report were hearsay, even if the report itself is not. And they could certainly reach a different conclusion with respect to the expert testimony of Professor Simi. Perhaps in another state, we would have time to produce our own sociology expert who would contradict Professor Simi.

ALITO: Should these considerations be dismissed as simply consequentialist arguments, or do they support a structural argument that supports the position that you're taking here?

MITCHELL: I think they all mutually reinforce each other. We have an argument, we believe, that is sufficient to dispose of this case just based on the meaning of officer of the United States, as well as the argument we're making based on term limits.

But all of the consequentialist considerations that Your Honor has suggested are additional reasons to reverse the Colorado Supreme Court, although we don't think it's necessary to get into consequences because the law is clearly on our side.

SOTOMAYOR: You keep saying term limits.

[10:30:00]

There are other presidential qualifications in the Constitution, age --

MITCHELL: Yes.

SOTOMAYOR: -- citizenship.