During a heated exchange in court on Thursday, Supreme Court Justice Neil Gorsuch scolded the Colorado lawyer who was contesting Donald Trump’s right to appear on the state’s ballot.
Attorney Jason Murray contended that Trump was unable to run for public office because he committed an act of insurrection on January 6, 2021. Murray added that Trump ruled himself out as soon as the purported uprising started.
Judge Samuel Alito and Gorsuch questioned Murray on his position, questioning whether it would then be acceptable for military personnel to defy the chief executive’s commands at the time of the alleged offense.
Murray shot back, saying that military leaders would have to carry out Trump’s commands until legal action took place to impose his disqualification from office.
However, Gorsuch did not agree with his answer and continued to hammer the attorney in court:
“MURRAY: Well, certainly you need a procedure in order to have any remedy to enforce the disqualification.
GORSUCH That’s a whole separate question. That’s the de facto doctrine, doesn’t work here. Okay, put that aside. He’s disqualified from the moment. Self-executing. Done. And I would think that a person who would receive a direction from that person, the president, former president, in your view, would be free to act as he or she wishes without regard to that individual.
MURRAY: I don’t think so, because I think, again, the divine officer doctrine would nevertheless come into play.
GORSUCH: No that doesn’t work, Mr. Murray, because de facto officer is to ratify the conduct that’s done afterwards and insulate from judicial review. Put that aside. I’m not going to say it again. Put it aside. Okay. I think Justice Alito is asking a very different question, a more pointed one and more difficult one for you. I understand, but I think it deserves an answer. On your theory, would anything compel a lower official to obey an order from, in your view, the former president?
MURRAY: I’m imagining a situation where, for example, a former president was, you know, a president was elected and they were 25 and they were ineligible-
GORSUCH: No, no. We’re talking about sections three. Please don’t change the hypothetical, okay? Please don’t change the hypothetical. I know, I like doing it too, but please don’t do it.
MURRAY: The point I’m trying to make is-
GORSUCH: He’s disqualified from the moment he committed an insurrection. Whoever it is, whichever party that at, that happens. Boom! It happened. What would compel…and I’m not going to say it again so just try and answer the question if you don’t have an answer fair enough. We’ll move on. What would compel a lower official to obey an order from that individual?
MURRAY: Because ultimately we have statutes and rules requiring chains of command. The person is in the office, and even if they don’t have the authority to hold the office, the only way to get someone out of the office of the presidency is impeachment. And so I think if you interpreted section three in light of other provisions in the Constitution, like impeachment, while they hold office impeachments, the only way to validate that they don’t have the ability to hold that office and should be removed.”