Donald Trump's Supreme Court Appeal Has Three Big Issues: Former Prosecutor

Donald Trump's appeal to the U.S. Supreme Court over his Colorado primary ballot ban has three major issues at its heart that will need to be worked through, according to former federal prosecutor Glenn Kirschner on Saturday.

The Court on Friday afternoon announced that it will take up the former president's appeal against Colorado's decision to ban him from appearing on its ballot. Last month, the state's own Supreme Court issued the ruling, citing Section 3 of the 14th Amendment that bars individuals who participated in or aided an insurrection against the U.S. government from holding elected office.

Trump, the frontrunner in the 2024 GOP presidential primary, has denied that he took part in an insurrection during the January 6, 2021, Capitol riot when a group of his supporters stormed the Capitol building in order to stop the certification of Joe Biden's 2020 election win. The former president, without any evidence, said the election was stolen from him due to widespread voter fraud. In connection to the riot, Trump was indicted on four counts by the Department of Justice (DOJ) in August 2023, including conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights. The former president maintains his innocence.

The Colorado ruling was the first ballot challenge against Trump to see actual results, though many have been filed in numerous states. In the wake of the decision, Maine's secretary of state also moved to disqualify Trump from appearing on the state's presidential primary ballots. Moving forward, the Court's decision on the Colorado case could have major implications for other states looking to make similar moves against Trump. Arguments in the case will begin on February 8.

During a Saturday appearance on MSNBC, Kirschner, a former assistant U.S. Attorney and frequent Trump critic, outlined to host Katie Phang what he sees as the main three issues that the U.S. Supreme Court will need to work through in making its ruling.

"I do think there are three big [issues] they are going to have to take on," Kirschner said. "One: the definition of insurrection, as that term is used in Section 3 of the 14th Amendment. Two: is the office of the presidency actually held by an officer of the United States? I think a third grader could dispatch with that question and say, 'of course it is.' And then three I think might be the biggest one: what process is due? For example, must Congress be involved? Must the courts be involved, either criminal courts or civil courts? Can secretaries of state resolve this issue?"

Newsweek reached out to other legal experts via email for comment.

In a previously released statement, Trump's campaign welcomed the Court's development and condemned the Colorado court's decision as election interference.

"We welcome a fair hearing at the Supreme Court to argue against the bad-faith, election-interfering, voter-suppressing, Democrat-backed and Biden-led, 14th Amendment abusing decision to remove President Trump's name from the 2024 ballot in the state of Colorado," spokesman Steven Cheung said.

In a statement provided to Newsweek on Saturday, Dave Aronberg, the state attorney for Palm Beach, Florida, and legal expert, predicted that the Supreme Court would put more focus on the due process issue, which would better allow them to overturn the rulings in Colorado and Maine.

"I would be surprised if the 6-3 conservative majority on the Supreme Court gets into the thorny and embarrassing issue of whether Trump engaged in insurrection," Aronberg explained. "Instead, I think they will rely on procedural due process arguments as a way out of this. I anticipate that they will overturn Colorado and Maine by referring to Section Five of the Fourteenth Amendment and say that Congress needs to establish some formal mechanism or baseline rules to ensure due process and prevent chaos in the fifty states."

He continued: "I think they will reject the argument that the President isn't covered by Section Three of the Fourteenth Amendment. It doesn't make sense that the framers of the amendment would want to prevent insurrectionists from getting elected to Congress and other offices, but would be OK if an insurrectionist became president."

Updated 1/6/24, 5:14 p.m. ET: This article was updated to include comment from Aronberg.