Supreme Court in 'Precarious Position' With Donald Trump Case: Ex-Judge

The Supreme Court is in a "precarious position" as it is set to rule on whether Donald Trump should be disqualified from running for office for engaging in insurrection on January 6, 2021, according to a former judge.

Conservative federal Judge J. Michael Luttig made the remarks as the Supreme Court is set to hear oral arguments on whether a decision to disqualify Trump from the 2024 ballots in Colorado for violating the U.S. Constitution's insurrection clause should remain in place.

Section 3 of the 14th Amendment states that a person who "engaged in insurrection or rebellion" after taking an oath of office to support the Constitution should be barred from running for office again. In a historic ruling in late December, the Colorado Supreme Court banned Trump from running for president in the state for violating the amendment during the Capitol riot.

Any decision from the country's highest court will apply nationwide, including in Maine, where Secretary of State Shenna Bellows also prohibited Trump from running for the presidency for allegedly violating Section 3 of the 14th Amendment.

Luttig suggested on CNN that the Supreme Court does not want to decide the case solely on whether Trump engaged in an insurrection in and around the Capitol riot and instead will be looking for all "legitimate off-ramps" to make its decision based on other factors.

"But there are no legitimate off-ramps to that decision," Luttig said. "What you'll see this morning at the court is the court looking, plumbing all possibilities with counsel, as to how the court can resolve the case without deciding whether the former president was disqualified."

Luttig added that the Supreme Court judges can't rule on any other issue apart from if Trump engaged in insurrection because there is "no question whatsoever" that the former president did while trying to stop Joe Biden from becoming president.

"All of this prevented the peaceful transfer of power for the first time in American history. This is precisely the insurrection that disqualifies one under Section 3 of the 14th Amendment, so that is the only legal issue."

Newsweek reached out to Trump's office for comment via email.

Trump has repeatedly denied any wrongdoing with regards to the January 6 attack, and still falsely claims the 2020 election was "rigged" against him due to widespread voter fraud.

The frontrunner in the 2024 GOP primary and his legal team have argued that the 14th amendment cannot be used to stop him running for the White House again as the wording on the clause does not apply to the position of president.

Trump has also claimed that the 14th amendment doesn't apply to him as he technically did not swear an oath to "support" the Constitution. Instead, during his January 2017 inauguration, Trump swore to "preserve, protect and defend" the Constitution during his role as president.

In January, Preet Bharara, former U.S. attorney for the Southern District of New York, suggested there are several "off ramps" which could provide the Supreme Court the chance to rule on the Colorado ballots decision without saying if Trump did or did not engage in insurrection.

These include ruling that the decision on Trump's legitimacy should ultimately be made by Congress, and not the courts, or agreeing that the wording of Section 3 of the 14th Amendment means it does not apply to those running for president.

"It makes references to senators, representatives, electors, members of any state legislature, executive or judicial officers of any state, but it pointedly, in the minds of some people who are making this argument, it pointedly doesn't refer to the president of the United States," Bharara said on his Stay Tuned podcast.

"There's an argument, or a subset of an argument, that the section doesn't even apply to the president. That, of course, also doesn't get to the issue of whether or not there was an insurrection or whether or not Donald Trump engaged in an insurrection. It would again be a procedural point."