Why the Supreme Court won't overrule that Trump aided an insurrection: legal expert
December 29, 2023
Former President Donald Trump may or may not escape disqualification from the ballot thanks to the Supreme Court, said former federal prosecutor Glenn Kirschner on his "Justice Matters" show Friday — but even if he does, the justices are highly unlikely to reverse the determination by lower court judges that he engaged in insurrection, for one simple reason.
This comes as several states grapple with whether to remove the former president under the Insurrection Clause of the 14th Amendment. Colorado and Maine have both done so, with their decisions on hold pending Supreme Court review, but California and Michigan, where state law and the responsibility of the secretary of state are different, declined to do so at this time.
It's beyond dispute that Trump furthered the January 6 attack, said Kirschner — because "we have seen him continue to give aid" to the insurrectionists, complete with "pledges of love and pardons." That Trump engaged in insurrection, he continued, is "the only rational conclusion one could reach."
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"It is almost inconceivable that the United States Supreme Court would rule, that someone who holds the office of the presidency, who then engaged in insurrection, should be permitted to hold the office of the presidency again," said Kirschner. But even if they do, they will almost certainly not review the underlying facts of the case, including that Trump was found to have furthered insurrection — because "that is a finding of fact ... entitled to great deference on appeal," and appellate judges, including the Supreme Court, are there to review legal questions, not the fact determinations at trial.
This is, Kirschner noted, a longstanding principle of law, because appellate judges recognize only the trial judge and, where applicable, a jury, could see the testimony and evidence firsthand and judge its credibility.
They could absolutely still find the lower courts misinterpreted the 14th Amendment, he added, and order Trump to remain on the ballot — that, he said, is "completely fair game" because "they don't owe questions of law the kind of deference that they owe factual determinations by the trial court."
As for whether they will, Kirschner concluded, it's hard to say because many of the justices haven't been "honest brokers of the law" in recent years. However, he concluded, he is heartened by the fact that the justices have so far not chosen to review any of the antics by Trump's lawyers that were shot down in lower courts.
Watch the full episode below or at the link here.
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