Do Donald Trump's actions during the storming of the Capitol make him unelectable?
On Thursday, the majority of judges of the American Supreme Court, responsible for defusing this explosive issue less than nine months before the presidential election, displayed their skepticism.
The ex-president, arch-favorite in the Republican primaries, is asking for the annulment of the decision in December by the Colorado courts ordering his removal from the ballots in this western state of the country.
Legal commentators argue about the validity as well as the political expediency of such a procedure.
But everyone agrees that the conservative majority court, burned by the fallout from its 2000 decision giving victory to Republican George W. Bush over Democrat Al Gore, will want to avoid being open to suspicions of electoral interference. .
During a hearing of approximately two hours, several judges, whether conservative or progressive, expressed their doubts.
“Why should a single state have the ability to make this decision, not only for its own citizens but also for the rest of the nation?”
, asked Elena Kagan, appointed by Democrat Barack Obama.
The president of the court, the conservative John Roberts, was concerned about the
“consequences”
of the Colorado decision.
“If Colorado's position is maintained, there will surely be disqualification proceedings on the other side
,” he said.
"I would expect a good number of states to say, regardless of who the Democratic nominee is, 'you're off the ballot
. '"
"Anomaly"
Of the twenty states in which ineligibility appeals were filed against Donald Trump, only two were successful, in Colorado and Maine.
Several states are nevertheless waiting for the Supreme Court to rule definitively.
Donald Trump's lawyers call the Colorado decision an
"anomaly"
and call on the Supreme Court to overturn it to
"protect the rights of tens of millions of Americans who wish to vote for President Trump
. "
They devote the bulk of their final written arguments to a seemingly secondary issue, attempting to demonstrate that the presidency of the United States is not one of the offices covered by the 14th Amendment to the Constitution.
This amendment, adopted in 1868, then targeted supporters of the Southern Confederacy defeated during the Civil War (1861-1865).
It excludes from the highest public offices anyone who has engaged in acts of
“rebellion”
after having taken an oath to defend the Constitution.
The Colorado courts considered that the actions of Donald Trump on January 6, 2021 fell within the 14th Amendment.
That day, hundreds of supporters of the outgoing president, heated in particular by his unfounded allegations of electoral fraud, stormed the Capitol, the sanctuary of American democracy, to try to prevent the certification of the victory. of his Democratic opponent Joe Biden.
Donald Trump's lawyers maintain that January 6, 2021 did not constitute a rebellion and that their client was in no way involved in it.
On January 6, 2021,
“there were no guns, there was nothing (...) if you take a look at what I said right after (...) you will see very beautiful, which really warm the heart
,” Donald Trump said this Thursday from his luxurious residence at Mar-a-Lago in Florida.
The Republican assured that he had followed the discussions at the high court in Washington in the morning.
"Loophole"
The largely unprecedented nature of the case complicates any prediction, but many experts attribute to the nine judges the temptation to find a
“loophole”
to keep Donald Trump's name on the ballots without venturing into the minefield of qualification of his actions during the assault on the Capitol.
“In such a politically hot case, the court wants to appear as apolitical as possible
,” Steven Schwinn, professor of constitutional law at the University of Illinois at Chicago, told AFP.
According to him,
"the most likely escape route for her would be to assert that only Congress is empowered to remove a candidate from the ballot for the presidential election
. "
An argument invoked by Donald Trump's lawyers, but contested by jurists who emphasize that no intervention from Congress is required to apply other eligibility conditions, such as the minimum age of candidates or their place of birth.
“We fully understand that the members of the court would prefer not to find themselves embroiled in a presidential election in this way.
But there is no way to escape it
,” write three renowned jurists from different political backgrounds in a memoir.
Edward Foley, Benjamin Ginsberg and Richard Hasen urge the nine judges to rule on the merits and not on questions of form, in order to definitively cut the Gordian knot before voting day, November 5.