Do Donald Trump's actions during the storming of the Capitol make him unelectable? The nine judges of the American Supreme Court, the highest court in the United States, are trying on Thursday February 8 to defuse this explosive question, less than nine months before the presidential election.
The ex-president, arch-favorite in the Republican primaries, is asking for the annulment of the Colorado court's decision, handed down in December, ordering his removal from the ballots in this state in the west 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. .
Of the twenty states in which ineligibility appeals were filed against Donald Trump, only two were successful – in Colorado and Maine. Several states are, however, waiting for the Supreme Court to rule definitively.
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Ruling on the 14th Amendment to the Constitution
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 most of their final written arguments to a seemingly secondary issue. They seek 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 functions 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 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.
Read alsoElectoral pressures, assault on the Capitol... Donald Trump's legal problems
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.
“Risk of unprecedented political instability”
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 the name of Donald Trump on the ballots without venturing into the minefield of the 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, explains to AFP, believing that it “still bears the stigma of of the 2000 election. According to him, "the most likely escape route for her would be to assert that only Congress has the authority to remove a candidate from the ballot for the presidential election."
An argument also 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 location of birth.
“We fully understand that the members of the Court would prefer not to find themselves embroiled in a presidential election. But there is no way to escape it,” three renowned jurists from different political backgrounds wrote in a brief.
Edward Foley, Benjamin Ginsberg and Richard Hasen urge the nine justices to rule on the merits and not on questions of form, in order to definitively cut the Gordian knot before voting day, November 5. Otherwise, "with a country more polarized than ever in recent history", they warn, of "taking the risk of political instability never seen since the Civil War".
With AFP
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