US election: Supreme Court: Can Trump become US President again?

The US Constitution regulates who can become president. The person must be a natural-born citizen, at least 35 years old, and have lived in the United States for at least 14 years. So far, so clear. But then there is the so-called ban on insurrection in the 14th Amendment. It basically means that no one who has previously taken part in an uprising against the state as an official may hold a higher office in the state.

Curtain up: Donald Trump. The 77-year-old wants to go back to the White House after the presidential election in November. But the Republican’s opponents argue that with his behavior surrounding the storming of the Capitol, he forfeited his right to become president again. With appropriate efforts they were successful – for example in the state of Colorado. Now it’s the country’s highest court’s turn.

Final decision only in a few weeks

The nine justices in Washington listened to arguments from both sides. At the hearing, the court cross-examined the lawyers – there were initially no signs of a defeat for Trump. The judges’ questions always provide an insight into their thoughts. But the final decision will probably only be made in a few weeks.

In December, the highest court in Colorado ruled in an explosive ruling that former President Trump had disqualified himself from the Republican primary for the presidential nomination in the state. Trump appealed. The judgment is suspended until the issue is finally resolved. It is now up to the Supreme Court to decide on the further course of the presidential elections in the USA. The question of Trump’s exclusion from the presidency is not only legally tricky – it is politically explosive, could further divide US society in an election year and push the political system to its limits.

Trump has shifted the majority on the Supreme Court to the right

The country’s highest court likes to appear impartial and unbiased. A good 23 years ago, however, it made a historic decision about the outcome of a presidential election. At that time the question was whether the votes in the crucial state of Florida should be recounted. The Supreme Court stopped the recount, making Republican George W. Bush president, while Democrat Al Gore lost. The court’s reputation was damaged at the time and there was a lot of criticism. The Supreme Court’s ruling in the Trump case is likely to have a similar – perhaps even greater – dimension.

During his term in office, Trump had the opportunity to fill three Supreme Court judgeships. He chose ultra-conservative and deeply religious candidates and shifted the court’s majority far to the right, possibly for decades. Only three of the nine judges are assigned to the liberal camp. In this configuration, the court has often ruled in favor of religious plaintiffs, weakened the protection of minorities and overturned the right to abortion, which had been in effect for around 50 years. As a result, surveys show that the court has lost support among the population. However, it didn’t always decide what Trump wanted – for example when it came to the release of his tax documents.

Legal tightrope act

In the case of Trump’s suitability as president, there are roughly three questions to be answered. The first is whether the Insurrection Clause in the Constitution applies to presidents. Although the passage mentions some examples of such higher offices, the office of president is not explicitly mentioned. Secondly, it must be clarified whether the storming of the Capitol on January 6, 2021 should be considered an insurrection. Trump’s supporters stormed the parliament building in Washington. Congress met there to formally confirm Democrat Joe Biden’s victory in the presidential election. Trump had previously incited his supporters during a speech. Thirdly, if this event were to be considered an insurrection, it would have to be clarified whether Trump took part in it.

However, experts assume that the court will not answer any of these questions. Because the case is too politically charged for that. “I think there will be a technical verdict,” says law professor Aaron Tang from Stanford University in California in an interview with the German Press Agency. This means that the Supreme Court would avoid the central questions in order not to make itself politically vulnerable. “You can think of this as an emergency exit, a way for the Supreme Court to rule in favor of Trump that is not politically explosive.” Tang expects the court to side with Trump.

Supreme Court could shift responsibility to Congress

Tang and other lawyers suspect that the Supreme Court could see Congress as having jurisdiction over the question of presidential eligibility. A possible ruling could say that the US Congress would have to act accordingly before the Insurrection Clause could be applied to a specific person. Trump’s lawyer Jonathan Mitchell also argued this on Thursday. In an exchange with the justices, he also argued that the Insurrection Clause did not apply to Trump because it only applies to appointed and not elected officials such as presidents.

He also commented on the question of whether the storming of the Capitol was an insurrection: “This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things, but they were valid not as an uprising.” The lawyer for the opposing side, Jason Murray, emphasized that the events on January 6, 2021 met the criteria of an insurrection. Some conservative judges addressed the possible classification as an insurrection, but the question was not a central focus of Trump’s defense. Chief Justice John Roberts also noted that disqualifying Trump from the presidency in one state could result in Democratic candidates being removed from the ballot in other states.

Trump’s worst case scenario

There is, of course, the possibility that the Supreme Court will decide that Trump is unfit to be president. He could then continue to run for office, but depending on the specific decision, his name could perhaps also appear on the ballot in some states under certain legal circumstances. But the Republican is unlikely to become President of the USA again. However, experts believe that it is absolutely unlikely that the Supreme Court will make such a ruling. There was also no indication at the hearing on Thursday that the court would take this route.

If that happens, some observers also fear political violence – the storming of the Capitol showed how far Trump and his supporters are willing to go. For lawyer Tang, such a verdict would be a “world-changing decision.”