Legal analysts had anticipated that the U.S. Supreme Court would reverse Colorado's effort to kick Donald Trump off its ballot — but they said Monday it hadn't worked out the way the former president might have hoped.
Speaking to MSNBC, former senior Department of Justice prosecutor Andrew Weissmann and former acting Solicitor General Neal Katyal both pointed out that the state didn't address if Trump is guilty of insurrection — which the Colorado decision had ruled.
The court only ruled that the states can't decide if the Constitution's 14th Amendment, which says that anybody engaging in insurrection against the U.S. is barred from public office, applies to the presidency.
That decision, the court ruled Monday, needs to be made by Congress.
"The issue of the facts, is he an insurrectionist or not, was not before the court, and they do not in any way that I've seen so far, and after quick skimming, take that on to say that we are saying that that was an incorrect, factual finding," said Weissmann. "They're simply deciding this as a legal basis."
He also said that the case "will put more questions to why Jack Smith didn't charge essentially insurrection, didn't charge a criminal statute which was passed, of course, by Congress whereupon conviction disqualifies you from holding office because that would seemingly potentially qualify for what the Supreme Court says is necessary, that sort of federal action that they're looking for as opposed to individual, unilateral state action."
Katyal agreed, noting Trump was likely "disappointed" that the U.S. Supreme Court didn't absolve him of the Colorado court's insurrection finding.
"The court did not do what Donald Trump asked, which was to clear him of insurrection," he said.
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"I suspect they didn't do that because there are criminal proceedings that are ongoing against Donald Trump right now, where that very question is the ball game," he continued.
Citizens for Responsibility and Ethics in Washington (CREW), who brought the lawsuit in Colorado, said in a statement: "The Supreme Court just overturned our win in Colorado barring Donald Trump from the ballot under the 14th Amendment. But crucially, the Court did *not* exonerate Trump of insurrection. They had the chance to do so and chose not to."
Republican former Congressional adviser Rina Shah pointed out that the GOP "of yesteryear would've been hopping mad about this decision. Seems this SCOTUS majority is anti-states rights now. What a cruddy call."
"As I read this opinion (quickly) it seems that Donald Trump is ineligible to be governor of Colorado under the insurrection clause, but, unless Congress or U.S. attorneys enforce the 14th Amend. S. 3, he is eligible to be President of the United States," said former George W. Bush ethics czar Richard Painter.
"Ridiculous and absurd, in my opinion, to ask 'the text of the 14th Amendment' to 'affirmatively delegate' to the states to administer the federal aspect of their own elections when that power — unlike, say, removing sitting federal officers — was always in the original Constitution," complained lawyer and reporter Luppe B. Luppen. "It’s a unanimous judgment from SCOTUS in the Colorado ballot access case. And it’s a horrifically bad one."
Legal expert and podcaster Allison Gill lamented that the Supreme Court left one scary question up for grabs: "The conservative wing (minus Barrett) have opined on a question that wasn't before them. So if Congress must pass legislation to disqualify insurrectionists, what happens when Congress is full of insurrectionists?"
Georgia State College of Law Professor Eric J. Segall told the internet: "I know you all are mad and angry. But what do you expect a tribal of elders to do: disqualify a man with 70,000,000 votes. It was never, ever going to happen. #notacourt."
Lawyer Andrew Fleischman reposted the comment with a GIF of Lucy pulling the football away from Charlie Brown.
