Brandon Drenon
Reporting from Washington DC

More now from that exchange just now between Justice Brett Kavanaugh and Jason Murray, the Colorado lawyer arguing to keep Trump off the state's ballot.

Kavanaugh was asking how the Supreme Court should read into the "vague language" of the Constitution at the centre of this case - Section 3 of the 14th Amendment.

One of the main arguments between lawyers and the justices is whether states have the power to act on Section 3 for the presidency or if Congress must first pass legislation to grant states that power.

Murray argues that waiting on Congress or a federal prosecution is too slow.

"This case illustrates the danger of refusing to apply Section 3 as written, because the reason we're here is that President Trump tried to disenfranchise 80 million Americans who voted against him and the Constitution doesn't require that you be given another chance."

Sam Cabral
Reporting from the Supreme Court

Towards the end of Colorado lawyer Murray's time, Justice Brett Kavanaugh posed a question that has been frequently echoed for months by both conservatives and liberals - whether removing Trump from the ballot disenfranchises voters around the country.

Jason Murray was clearly well prepared for this question and made a case for Section 3 as "a democratic safety valve".

"Constitutional safeguards are for the purpose of safeguarding our democracy, not just for the next election cycle, but for generations to come," he said.

Those who crafted Section 3, he continues, "knew from painful experience that those who had violently broken their oaths to the Constitution couldn't be trusted to hold power again because they could dismantle our constitutional democracy from within. And so they created a democratic safety valve."

Image source, Getty

A lot of the legal argument in the last half hour or so has been over the word "insurrection", which is in a key clause of the US Constitution that this case hinges on.

Rioters smashed their way into the US Capitol on 6 January 2021 to try and stop Joe Biden's election win being certified.

The Colorado Supreme Court says Donald Trump's involvement that day amounts to insurrection. And because of that, they say he is disqualified from being on the ballot.

But Trump's lawyers argue that:

1. It was not an insurrection
2. Even if it was, Trump did not "engage" in it

If Trump's team convinces the Supreme Court justices on either point, they'll win this case.

So what is an insurrection?

Broadly speaking, it means when violence is used by an organised group to rebel or revolt against the government., external

And while many people label 6 January as an insurrection, it's a rare and difficult charge to prove.

That's why the harshest jail terms from that day have been for charges of seditious conspiracy (which is more about plotting incitement), and not insurrection.

Kayla Epstein
US reporter

Justice Samuel Alito is pressing Jason Murray, who is the lawyer representing the Colorado voters who brought the case against Trump.

Alito asks what the court should do if it is hit with several conflicting cases that deal with whether Trump engaged in insurrection.

He asks what the court should do if it must judge decisions from different states, using different evidence, with different standards of proof of what counts as insurrection, from different judges.

Murray engages with him on the technical matters, but keeps returning to his client's argument that Trump did engage in insurrection, and cites the winning evidence they presented to the court in Colorado.

Alito grows impatient. He cuts Murray off, saying he wants the lawyer to grapple with the consequences of the argument he was advancing.

"I'm not getting a lot of help from you" about how to handle what could be an "unmanageable situation," Alito says.

Brandon Drenon
Reporting from Washington DC

The justices continue to press Murray, Colorado's lawyer, on the implications for upholding Colorado's ruling and allowing Trump to be disqualified because he allegedly engaged in an insurrection.

As we reported just now, the Supreme Court appears concerned that enabling one state to remove Trump will open the floodgates to a flurry of states removing presidential candidates from state ballots in the future.

Murray replies: "No, your Honour. Because different states can have different procedures.

"Some states may allow insurrectionists to be on the ballot."

Sam Cabral
Reporting from the Supreme Court

The questions the Supreme Court justices are posing to each side, and which of them have led what questioning, hint at how they might rule.

When Trump lawyer Jonathan Mitchell delivered his argument, we heard quite a bit from liberal justices Sonia Sotomayor and Ketanji Brown Jackson.

Jackson in particular did not appear to buy Mitchell's case that the 14th Amendment did not apply to his client. Her colleague, conservative jurist Amy Coney Barrett, also expressed a surprising dose of scepticism in the first hour.

The questioning picked up, however, as Colorado lawyer Jonathan Murray took the hot seat.

Conservatives Neil Gorsuch and Samuel Alito, in particular, seemed to be implying that the attorney was being evasive in answering them, expressing some amount of annoyance over the matter.

Barrett and Chief Justice John Roberts, who have had tough hypotheticals for both sides, could be the wildcards on this ruling.

More now on one of the key exchanges we heard earlier from Trump's lawyer and one of the judges.

Section 3 of the 14th Amendment (which the case hinges on) bars those who have "engaged in insurrection or rebellion" against the country from holding federal office.

Trump's lawyer Jonathan Mitchell said the Capitol riot on 6 January 2021 was "shameful criminal violence" - but not an insurrection. You can listen to the exchange above.

Kayla Epstein
US reporter

More now from Chief Justice John Roberts, who turns to the Colorado court finding that Trump engaged in insurrection and should be disqualified.

He raises the concern that there could be unexpected and more frivolous consequences for siding with the Colorado ruling on the point.

States could have different definitions of what constitutes insurrection, Roberts says.

He describes a partisan worst-case-scenario where some Democratic states rule that a Republican candidate engages in "insurrection" and kick them off the ballot, and Republican-controlled states do the same to a Democrat.

Then only a handful of swing states would determine the presidency, he theorises. "That's a pretty daunting consequence," he says.

Murray replies that the statute hadn't been used for about 150 years because America hadn't experienced anything like the January 6 Capitol riot up until this point, and that it was an extraordinary event.

He also argues the Supreme Court would have to help decide what constitutes "insurrection".

Sam Cabral
Reporting from the Supreme Court

Jason Murray is facing a grilling here, with Justice Neil Gorsuch and Chief Justice Roberts posing some very tough questions.

Gorsuch plays the devil's advocate by taking on the Trump team's argument that Section 3 allows the former president to remain in the race, but perhaps not hold the office if he wins.

Murray is arguing that it essentially means the same thing, given that the goal of running is to hold office.

Ultimately, he says, it all comes down to Trump's eligibility for the office.

Gorsuch pushes back, saying that as Trump lawyer Jonathan Mitchell pointed out, Congress can remedy this through a two-thirds majority vote. (Congress can vote to knock down Section 3.)

But Murray replies that this does not negate the fact that, if Trump has no constitutional right to hold an office, then by extension, he does not have the right to run.

Brandon Drenon
Reporting from Washington DC

Speaking to Colorado lawyer Jason Murray, Justice Elena Kagan says: "I think that the question that you have to confront is why a single state should decide who gets to be president of the United States."

"Not only for their own citizens, but for the rest of the nation."

She continues: "This question... it sounds awfully national to me. Whatever means there are to enforce it would suggest it has to be federal, national means.”

Murray disagrees and says that even if the Supreme Court ruled in favour of Colorado other states would still be free to make their own decisions.

"If this court affirms the decision below, determining President Trump is ineligible to be president, other states would still have to determine what effect that would have on their own state's law and state procedure," Murray says.

Sam Cabral
Reporting from the Supreme Court

Chief Justice John Roberts is questioning Jason Murray - who is speaking on the side of the Colorado ruling - on how to interpret the 14th Amendment.

Roberts argues that the point of the amendment - which addresses citizenship and the rights of citizens - was to limit state power and expand federal power.

He questions whether the manner in which Colorado is using the amendment's Section 3 is "at war with the whole thrust of the 14th Amendment and very ahistorical".

Murray is struggling to answer here - but he is pushing back that this court essentially has the opportunity to decide, for the whole nation, whether the state had the ability to make the determination that Trump should be removed from its ballot.

Kayla Epstein
US reporter

The justices have just finished their grilling of Trump's lawyer Jonathan Mitchell.

So far, the justices have focused on two key arguments in Trump’s case:

• They have dug into his argument that the president is not covered under Section 3 of the 14th Amendment because the role is not specifically listed in the text, and that the president is not an “officer of the United States”, a term that does appear in the text. There was a great deal of technical and hair-splitting questions from the justices on this language.
• The parties have also discussed whether the clause is “self-executing” or whether it takes an act of Congress to give it legal power.

So far we've barely got into the thorniest, and most explosive, question in this case - whether Trump actually engaged in insurrection on January 6, 2021.

Brandon Drenon
Reporting from Washington DC

Image source, Getty Images

Justice Ketanji Brown Jackson reminds Mitchell, Trump's lawyer, that the Colorado Supreme Court did find that "violent attempts" by participants on 6 January to breach the US Capitol did qualify as an insurrection.

Mitchell plainly disagrees.

To qualify as an insurrection, "there needs to be an organised concerted effort to overthrow the government of the United States", Mitchell says. "This was a riot. It was not an insurrection."

"The events were shameful criminal violence", Mitchell says, but not an insurrection as defined in Section 3.

The word insurrection is important - because Section 3 of the 14th Amendment (which the case hinges on) bars those who have "engaged in insurrection or rebellion" against the country from holding federal office.

We’ve heard the phrase “Section 3” a whole bunch already, so let’s do a crash course on what it is.

It’s part of the 14th Amendment of the US Constitution and says you can’t hold a position in federal office if you "have engaged in insurrection or rebellion against the [US].” It applies to people who served as "officers of the United States" - something we've also heard a lot of.

The 14th Amendment was ratified after the American Civil War, and Section 3 was included to stop secessionists from taking up any government roles when the South re-joined the Union.

The Colorado Supreme Court was the first time Section 3 has been used to disqualify a presidential candidate, which is why we are here today at the Supreme Court. It’s the highest court in the US and will decide if Colorado’s decision holds up.

Like a lot of constitutional law, the arguments today are all about semantics (after all, the text was written more than 150 years ago).

Trump’s lawyers are focusing on the words officers and engaged.

They argue a president is not an officer. And they say Trump did not directly engage in insurrection - arguing that telling his supporters to “fight like hell” is protected by the First Amendment.

Sam Cabral
Reporting from the Supreme Court

There has been some fierce questioning in this first hour from Amy Coney Barrett.

Justice Barrett is a conservative jurist who was appointed by Donald Trump to replace liberal icon Ruth Bader Ginsburg who died in 2020.

She expressed a dose of scepticism about Mitchell's arguments, at one point posing a question that suggested she did not believe his principal claim that Trump was not an officer of the United States.

Neil Gorsuch and Brett Kavanaugh, the two other Trump appointees on this court, jumped in at various points but did not appear quite as sceptical of the former president's argument.

Sam Cabral
Reporting from the Supreme Court

More now as the justices hone in on Mitchell's principal argument - that Trump was not "an officer of the United States" and therefore Section 3 can't apply to him. (Section 3 of the 14th Amendment bars "an officer of the United States" who has engaged in insurrection from holding public office).

Justice Elena Kagan points out that the presidency is an office of the United States.

She questions whether Mitchell is making "a bit of a gerrymandered rule designed to protect your client".

Trump's attorney replies that "officer of the United States" refers "only to those who are appointed, not elected".

Therefore, he argues, while it may "seem odd that President Trump would fall through the cracks in a sense... there's just no way he can be covered under Section 3".

Sam Cabral
Reporting from the Supreme Court

Image source, Reuters

The justices are full of questions for Mitchell.

They had been discussing similar amendments that have rules over who can run for president - for example a non-citizen or a 27-year-old is barred from running from president. (You have to be at least 35).

Ketanji Brown Jackson - one of the newer justices, being sworn in in 2022 - asks him why he argues that an insurrectionist is "categorical", just like those other categories.

No, Mitchell answers, because Congress can remove Trump from that category by a two-thirds vote knocking down Section 3.

Jackson tries to pivot to another question about why he argues Trump is not "an officer of the United States".

But other justices want to stay on the topic and they affirm there is plenty of time to hash out the issues.

The audience breaks out in laughter.

Kayla Epstein
US reporter

Justice Ketanji Brown Jackson is digging into Mitchell's definition of "officer of the United States" - which is a key phrase of the Section 3 clause.

Trump's team has argued this does not include the presidency and therefore Trump isn't disqualified under this term. It's a crucial point of debate in this case.

She reads off the offices that are explicitly mentioned in Section 3, and notes that the president is not one of them.

She then asks him to clarify why he thinks that the president isn't covered by this law.

Other justices take turns jumping in to grill Mitchell about the legal implications of his argument, and how far it can go.

Brandon Drenon
Reporting from Washington DC

More now from Justice Sotomayor, who presses Trump's defence lawyer Mitchell, on his main argument that states do not have the power to bar a candidate from running for presidency under Section 3. Mitchell says that clause has no power without another law to enforce it.

But Sotomayor says there are a number of cases where states have determined officials were ineligible due to circumstances such as age or being born in a foreign country.

Mitchell often rebuts this, adding that "officer of the United States" mentioned under Section 3 doesn't apply to elected officials with term limits.

"Are you setting it up so that if some president runs for a third term, that a state can't disqualify him from the ballot?" Sotomayor asks. In the US, a president has a two-term limit, under another amendment.

"Of course they can disqualify him from the ballot", Mitchell said, adding that they can do so during instances like those Sotomayor mentioned - a "categorical" disqualification like age.

"The question, Justice Sotomayor. is whether the state is violating term limits by adding to or altering the extant qualifications for the presidency in the Constitution."

Kayla Epstein
US reporter

Justice Samuel Alito, another conservative, presses Mitchell on the consequences of interpreting the law in the same way Colorado's Supreme Court did.

“The consequences of what the Colorado Supreme Court did, some people claim, would be quite severe,” Alito says.

It could carry over to other states, he suggests. They go back and forth about the possibility that different states could interpret the clause differently.