Supreme Court Could Dodge Trump Ruling via ‘Off Ramps’

The Supreme Court may rule on whether Donald Trump can remain on the ballot in Colorado without deciding whether the former president engaged in an insurrection, according to a legal expert.

Speaking on his Stay Tuned podcast, Preet Bharara, former U.S. attorney for the Southern District of New York, discussed ways in which the Supreme Court could decide if Trump can be disqualified from running for president in the state without condemning or condoning the Republican’s actions around the January 6 attack. Such decisions, where the Supreme Court does not ultimately decide on the main issue at hand, are known as “off-ramps.”

Trump, the frontrunner in the GOP primary, has been barred from running for the White House in Colorado and Maine over allegations his actions around the Capitol riot in January 2021 violated Section 3 of the 14th Amendment, which states that a person who “engaged in insurrection or rebellion” after taking an oath of office to support the Constitution cannot run for office again.

The Supreme Court agreed to take Trump’s appeal over the decision in Colorado, with the case set to be heard on February 8. The decision from the conservative-majority SCOTUS bench will then be applied nationwide.

While answering questions submitted by his listeners, Bharara was asked whether the Supreme Court ruling on whether Trump can be disqualified from the 2024 ballots for violating the Constitution’s insurrection clause will affect Special Counsel Jack Smith’s federal probe into Trump’s alleged criminal attempts to overturn the 2020 election results and the events which led up to the January 6 attack.

Bharara said that the Supreme Court’s Colorado decision should not have a bearing on Smith’s criminal case and the former president is not accused of insurrection. Trump has pleaded not guilty to four conspiracy and obstruction charges as part of the investigation.

Bharara then discussed how the Supreme Court could make a decision on whether Trump can be disqualified from the 2024 ballots without discussing the insurrection claims.

“There are various other arguments that are being made that could be what some people call off-ramps for the Supreme Court or a majority of the Supreme Court to decide that he can’t be disqualified, that don’t have to do with this language relating to insurrection or whether or not he engaged in insurrection,” Bharara said.

Examples of these “off-ramps” rulings include whether the decision on whether Trump can run for president should ultimately be made by Congress, and not the courts, or if SCOTUS agrees with the argument that the wording of Section 3 of the 14th Amendment means it does not apply to those running for president.

“It makes references to senators, representatives, electors, members of any state legislature, executive or judicial officers of any state, but it pointedly, in the minds of some people who are making this argument, it pointedly doesn’t refer to the president of the United States,” Bharara said.

“There’s an argument, or a subset of an argument, that the section doesn’t even apply to the president. That, of course, also doesn’t get to the issue of whether or not there was an insurrection or whether or not Donald Trump engaged in an insurrection. It would again be a procedural point.”

Bharara said that in its historic 4-3 decision in December, the Colorado Supreme Court rejected the argument that the section didn’t apply to the president, and that the court believed it would be “odd for the disqualification to apply to every single person who could run for office” in the country except for the “most important” one.

“So, it is possible that the Supreme Court makes its decision directly on the ground that they believe the insurrection language is not satisfied, but there are these other ways they could decide it as well,” Bharara added.

Trump’s office has been contacted for comment via email.

Ned Foley, an election law professor at Ohio State University, also believes that the Supreme Court will try to make the landmark ruling about whether Trump can remain on the Colorado ballots without discussing whether he incited or engaged in an insurrection on January 6.

“I certainly could understand if the court would like any of the procedural avenues that would avoid squarely addressing any of the merits,” Foley told Politico. “As a matter of first instinct, I think that would be attractive.”