The Supreme Court is expected to confront three major cases that could shape the presidential candidacy of Donald J. Trump and drastically affect his criminal case on federal election subversion charges.
The cases could alter his status as the Republican front-runner, the timing or viability of his trial and the scope of the charges he may face. All three cases involve laws open to multiple interpretations.
A close look at key passages of the Constitution and federal law helps illuminate the questions the justices will face.
Trump v. Anderson
Is Trump ineligible to be president under Section 3 of the 14th Amendment?
In December, the Colorado Supreme Court disqualified former President Donald J. Trump from appearing on the primary ballot under a provision of the Constitution that prohibits officials who have engaged in insurrection from holding office. It said that under that provision, Section 3 of the 14th Amendment, the Jan. 6, 2021, attack on the Capitol amounted to an insurrection, that Mr. Trump participated in it and that Section 3 applies to the presidency. But the ruling is on hold until the Supreme Court weighs in.
What the Law Says
Section 3 of the 14th Amendment, adopted after the Civil War, has long received scant consideration. But the scope and force of the provision has figured in recent lawsuits across the country, including in Colorado.
The provision begins:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State …
Section 3 seems to add a qualification for eligibility to hold office little different from the requirements that presidents be 35 years old, natural-born citizens and not to have already served two terms. But it speaks to holding office, not running for it, leaving an opening for Mr. Trump’s supporters to argue that the Colorado ruling was premature, particularly considering the provision’s last sentence, which gives Congress the power to lift the disqualification.
Also absent from the provision is an explicit reference to the presidency as among the offices covered. Still, the clause “any office, civil or military, under the United States” would seem to include the presidency, so long as it is considered an office “under the United States.”
The provision goes on to specify who is covered by it.
… who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
The presidential oath differs from the general one, which requires all executive and judicial officers “of the United States” to swear that they will “support” the Constitution. The president must, by contrast, swear to “preserve, protect and defend the Constitution.” The Colorado Supreme Court ruled that the language of the presidential oath is consistent with the plain meaning of the word “support.”
Not all insurrectionists are barred from holding office. Instead, Section 3 applies only to those who had earlier taken an oath to support the Constitution in specified capacities. Here again, the president is not listed by name though a second catchall phrase — “an officer of the United States” — would seem to cover him. But Mr. Trump’s supporters say that phrase refers only to appointed officials, not elected ones. If that is so, Mr. Trump would be the only president aside from George Washington not covered by Section 3, as he is the rare president without prior government service.
In his initial Supreme Court brief, Mr. Trump contended that the Jan. 6 assault on the Capitol fell short of “‘insurrection” as understood at the time. By that definition, he said, it meant “the taking up of arms and waging war upon the United States.” But the Colorado Supreme Court said the attack satisfied even a narrow understanding of the term.
But Congress may by a vote of two-thirds of each House, remove such disability.
Mr. Trump points to this last clause in the provision to argue that Section 3 “does not prevent anyone from running for office, or from being elected to office” — meaning it disqualifies people subject to it from holding office, not from seeking it. By that logic, if an otherwise disqualified candidate were elected, Congress could remove that disqualification before the candidate’s term began.
The Colorado Supreme Court rejected that analysis, saying that by that interpretation, various other requirements would no longer hold force: This “would mean that the state would be powerless to exclude a 28-year-old, a nonresident of the United States or even a foreign national from the presidential primary ballot in Colorado.”
United States v. Trump
Is a former president absolutely immune from prosecution for crimes committed while in office?
Former President Donald J. Trump says he has absolute immunity from prosecution for actions he took while in office, including from charges that he plotted to overturn the 2020 election.
A federal appeals court panel rejected Mr. Trump’s claim, and he is all but certain to appeal to the Supreme Court. A ruling from the justices — and when such a verdict is issued — could determine when, or even whether, Mr. Trump goes on trial in the election subversion case.
What the Law Says
The Constitution itself does not explicitly address the existence or scope of any such presidential immunity.
The closest it comes is in the impeachment judgment clause, which says:
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States …
After officials are impeached by the House of Representatives, they are tried in the Senate, with a two-thirds majority required for conviction. Mr. Trump’s second impeachment, for inciting insurrection, won 57 votes, 10 shy of the required supermajority.
The penalties for officials who are convicted are specifically limited to removal from office and disqualification from further service.
The clause then describes what other penalties remain available.
… But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
All the clause says in so many words is that “the party convicted” in the Senate can still face criminal prosecution. But Mr. Trump’s lawyers say the clause implies something more: Conviction in the Senate must happen before criminal prosecution of any official conduct, including the hypothetical ordering of assassinations of political rivals.
Mr. Trump’s lawyers have also made a slightly narrower argument, saying the clause grants a form of protection from double jeopardy. “A president who is acquitted by the Senate cannot be prosecuted for the acquitted conduct,” they wrote.
Fischer v. United States
Does a federal obstruction law apply to Jan. 6 defendants?
Two of the four charges against former President Donald J. Trump in the federal election-interference case are based on a provision of the Sarbanes-Oxley Act of 2002. The statute, enacted after the collapse of Enron, the giant energy company, was aimed primarily at white-collar crime. Prosecutors have also charged hundreds of rioters who stormed the Capitol on Jan. 6 under the provision, saying they had obstructed an official proceeding.
The Supreme Court has agreed to hear a challenge to such prosecutions from Joseph W. Fischer, who was accused of breaching the Capitol as Congress met to certify the results of the 2020 election and of assaulting police officers.
Mr. Trump is not involved in the case, but the Supreme Court’s ruling, expected by June, could undermine key parts of the prosecution of the former president.
What the Law Says
The provision, Section 1512(c) of the federal code, says:
(c) Whoever corruptly
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding …
The parties contest the meaning of the term “corruptly,” but it surely limits the sweep of the law. The lead opinion of a panel of U.S. Court of Appeals for the District of Columbia Circuit declined to define the term, but a concurring opinion said it required proof that “the defendant not only knew he was obtaining an ‘unlawful benefit’ but that his ‘objective’ or ‘purpose’ was to obtain that unlawful benefit.”
The two sides dispute whether the part of the provision that refers to “a record, document or other object” limits the scope of the second part, which concerns official proceedings. A dissenting judge wrote that the second part encompasses “only acts that impair the integrity or availability of evidence.” In a Supreme Court brief, the government said blocking lawmakers from certifying the state election results would satisfy even a strict reading of the law.
The statute continues:
… or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.
The term “otherwise” is under sharp dispute. The appeals court panel’s majority said that “otherwise” signifies “in a different manner,” meaning that the second part described forbidden conduct not limited to destruction of evidence and the like. A dissenting member of the panel called that reading “implausibly broad.”
Congressional certification of the Electoral College count would seem to qualify as an “official proceeding.”
As for the reference to “obstructs, influences or impedes any official proceeding,” the conduct of the rioters on Jan. 6 was covered by this requirement, the government said in its brief. “A defendant obstructs an official proceeding,” the brief said, “by physically blocking it from occurring — as happened here when petitioners and others violently occupied the Capitol for several hours and thereby prevented the joint session of Congress from doing its work.”