Barrett: You are arguing for clear error. Are we not stuck with the factual record from CO then? Deciding this for the whole country? What if the record wasnt great?
CO Lawyer: Ordinary clear error review applies, but sometimes on constitutional question with need for uniform resolution, there can be independent review (we have no objection to that)
Barrett: You want us to review de novo, without any deference to the lower court?
CO Lawyer: The factual record isn't really in dispute. Its made of Trump's own statements.
Justice Gorsuch noting that this is the only disqualification that can be removed. How should that inform the Court?
CO Lawyer: The fact that Congress has an extraordinary removal of disqualification power doesn't mean that the disability doesn't change their current status as disqualified. And state law doesn't permit the current status of disqualification from running.
Justice []: Insurrection is a broad term. And then this Court will be determining whether insurrection occurred or not? When do we determine which states are valid in the election process? And we'd need to adopt rules for that process?
CO Lawyer: ... yes... that is generally what this Court does when interpreting Constitutional provisions (he said it nicer).
Justice Kavanaugh: isn't the reason there are no examples was that Griffin was right and everyone has relied on that interpretation? And Congress could change it, but they have not in 150 years.
CO Lawyer: No, we just haven't seen an insurrection to this extent yet. Post-amnesty, it wouldn't have been applied since.
Justice []: Let's say that the outcome of the election comes down to one state. Suppose Candidate A gets majority of the votes, but the legislature doesn't like them as an insurrectionist, so passes a law ordering electors to vote for the other candidate. Can they do that?
CO Lawyer: There might be principles that come into play after an election.
Justice [?]: Interrupts again: No, we are not talking about other disqualifications. Only Section 3. It happened. What will compel a lower official to obey that individual?
CO Lawyer: We have chains of command, statutes, even without authority to hold the office, the only way to remove is impeachment. While they hold office, only way to validate and remove is that way.
J. Jackson: We could resolve this and provide a uniform ruling. Why would the framers want a system that could result in interim disuniformity with elections pending like this.
CO Lawyer: They were concerned more about insurrectionists holding office.
Justice [?]: It isn't helpful when you don't answer my question. Two different records, two different procedures, two different actors, what should we do?
CO Lawyer: If both records were sufficient under the legal principles adopted by this Court, then you look at the evidence presented and which holding is correct, deciding the issue for the country.
J. Sotomayor: Chase said we need implementing legislation in Griffin. You seem to say that isn't true because they could decide not to seat the candidate, so legislation doesn't seem necessary?
CO Lawyer: Article I power gives Congress that power not to seat them. In the context of the presidency, it would create huge issues if there is no procedure available until after the election.
CO Lawyer: Imagining the failure to count electoral votes due to disqualification. A constitutional crisis in the making. It is why we need to have certainty before we go to the polls.
Justice Kagan: We've put limits on states as to who can be taken off a ballot, such as minor party candidates. It affects other state's rights and extraterritorial impacts. Why does it not apply here?
CO Lawyer: The issue in that case was a first amendment issue. Article II power is constrained by the first amendment, so those deadlines were too soon under 1st amendment. That isn't present here.
Kagan: There is a broader principle though. That there are certain national questions where states are not the repository of authority. I took Anderson's reasoning to say that, as in what right does a single state have?
CO Lawyer: CO is determining the right to determine the choice of their electors. Other states may allow insurrectionists on the ballot. CO does not.
Justice Gorsuch: Lets talk about "officers"! All officers are to be commissioned by the president. Is that language not all encompassing? President pro-tempore are offices, but not officers due to the incompatibility clause.
(He's talking grammar and syntax now! Textualist alert!)
Justice Kavanaugh: Dissenting opinion in this case said there were due process concerns in the process here, let alone the conclusion. Is there a concern about that in light of state power here?
CO Lawyer: That language was simply not correct. There was a five-day trial, option to call witnesses, cross examine, testify, etc. It was expedited because its a ballot-access case. There is a deadline.
Kavanaugh: Do you think: if not states, then who? Would that answer not be Congress? There is a federal statute for insurrection, what dod we make of that?
CO Lawyer: That was enacted years before Section 3, so it is not implementing legislation for section 3.
Kavanaugh: If the concern you have is that insurrectionists should not have federal office, we have a tool, insurrectionist prosecution and the conviction's bar from federal office.
CO Lawyer: Framers of section 3 clearly recognized criminal prosecution wasn't sufficient because they often go unpunished, and so created civil provision in Section 3.