Expert singles out 'strongest argument' against Trump in SCOTUS case

The U.S. Supreme Court will hear oral arguments to determine whether Donald Trump should be disqualified from the Colorado ballot, and a legal expert identified the strongest argument against the former president remaining eligible.

The Colorado Supreme Court ruled him ineligible in December under the U.S. Constitution's insurrection clause, but Trump has appealed to the high court as other states watch and wait for the final decision, and MSNBC legal analyst Barbara McQuade told "Morning Joe" that the law was fairly clear on this political issue.

"If you look at the language of Section 3 of the 14th Amendment, it says not only that someone 'engaged in insurrection,' it also says, 'or provided aid or comfort' to those who did," said McQuade, a former U.S attorney. "I think there are a number of ways, just as the Colorado Supreme Court did, to find that Donald Trump did, indeed, engage in insurrection, which would bar him under this clause. For example, the speech he gave at the Ellipse and the tweets he sent even after the attack was under way could be a basis for engaging in insurrection."

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"However, if there is a worry that that violates any First Amendment rights that he may have, I think a stronger argument is that he provided aid and comfort to the same," McQuade added. "As president, unlike the rest of us, he has affirmative duties to take care that the laws be faithfully executed. His failure to call off that insurrection after 187 minutes, I think, is maybe the strongest argument that he provided aid and comfort to those who were engaged in insurrection. That would bar him, as well."

The case puts the court squarely in the middle of the 2024 presidential election, no matter what the justices decide, but McQuade said they should base their decision on the law and not political considerations.

"Chief justice [John] Roberts has his hands full here," she said. "I think we are at a moment in our nation's history when public confidence in the Supreme Court is very low. I think it has to be at the back of his mind that he doesn't want to do anything that makes that worse. If anything, he wants to bolster confidence. It's difficult to know which way that cuts. Removing Donald Trump from the ballot, I suppose, would be putting the court at the center of American life. Perhaps he would like to avoid being the decision maker that removes a presidential candidate who is leading his party for the nomination."

"On the other hand, [justice] Clarence Thomas himself has said it is not the job of the Supreme Court to render extinct language from the Constitution," McQuade added. "To say that, well, he is popular, so we should just forget about worrying about the 14th Amendment, it is the job of the court to interpret the law. So I think that they're a little damned if they do, damned if they don't here. If they say, you know, no, the voters should decide, that would really abdicate their role as the court to interpret the law."

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