Week in a Nutshell, 12/22/23

December 22, 2023

Week in a Nutshell, 12/22/23

Donald Trump speaks to guests at a campaign event on December 19, 2023 in Waterloo, Iowa. (Photo by Scott Olson/Getty Images)

Here is some of the legal news making the headlines this week:

The Colorado Supreme Court disqualified former President Donald Trump from running for president in the state.

Under Section 3 of the 14th Amendment to the United States Constitution, “No person shall…hold any office…under the United States…who, having previously taken an oath…as an officer of the United States…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The amendment was adopted in 1868 and has primarily been used to bar individuals from holding office due to their involvement in the Civil War.
A group of Colorado voters filed a lawsuit seeking to prohibit Trump from taking part in the Republican primary vote, and, ultimately, the 2024 presidential election. Citizens for Responsibility and Ethics in Washington filed the challenge on behalf of the voters. The group noted that the provision has “not been tested often in the last 150 years, due to lack of insurrections.” However, the group also recently sued to remove “Cowboys for Trump” co-founder Couy Griffin from his elected position as Otero County, New Mexico commissioner, becoming “the only successful case to be brought under Section 3 since 1869.”
In Trump’s case, the Colorado Supreme Court ruled 4-3 that Section 3 applies to presidents and that Trump “engaged in insurrection.” Therefore, Trump is disqualified from running for president again in Colorado. The majority wrote that “President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary. Moreover, the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.”
Trump is expected to appeal the decision to the U.S. Supreme Court. All eyes will be on Justice Neil Gorsuch after the Colorado court cited to a 2012 opinion written by Gorsuch when he was serving on the U.S. Court of Appeals for the Tenth Circuit. The Colorado court wrote, “As then-Judge Gorsuch recognized…it is ‘a state’s legitimate interest in protecting the integrity and practical functioning of the political process’ that ‘permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.’”

The Supreme Court also concluded 2023 with significant developments. The justices granted review of major cases.

In the first pair of cases, Food and Drug Administration v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine, the justices will consider whether to restrict access to the abortion pill Mifepristone. At issue in the cases is the propriety of the FDA’s 2016 and 2021 actions to make the drug more accessible, including permitting use of the drug through the 10th week of gestation and allowing health-care providers other than physicians to prescribe the medication. The cases arrived at the Supreme Court via the 5th Circuit Court of Appeals, which upheld a district court opinion that struck down the FDA’s measures. The appeals court, however, overruled District Court Judge Matthew Kacsmaryk’s decision to invalidate the FDA’s 2000 approval of the drug. In the petitition to the Supreme Court, U.S. Solicitor General Elizabeth Prelogar argued that the case should be dismissed since the challengers lack Article III standing to bring the case in the first place. Prelogar wrote that the challengers are a group of doctors who “oppose abortion on religious and moral grounds. They do not prescribe mifepristone, and FDA’s approval of the drug does not require them to do or refrain from doing anything.” The justices will hear oral arguments early next year.
The justices also agreed to hear oral arguments in Fischer v. United States. At issue in this case is whether the obstruction of an official proceeding statute that prosecutors have used to charge January 6 rioters applies to efforts to interfere with congressional certification of the electoral college vote. The criminal defendant in the case, Joseph Fischer, has been charged with, among other things, assaulting a police officer, disorderly conduct in the Capitol, and obstruction of a congressional proceeding. Prosecutors accused Fischer, a former Boston Police Department Officer, of engaging in a “physical altercation” with a Capitol Police Officer inside the building. The statute, 18 U.S. Code § 1512(c)(2), has been used to charge hundreds of January 6 rioters. However, U.S. District Judge Carl Nichols, a 2019 Trump appointee to the bench, threw out the charge against Fischer, writing that the statute was only intended to be used against individuals who tampered with evidence. The U.S. Court of Appeals for the District of Columbia Circuit reversed Nichols’s decision and reinstated the charge against Fischer, ruling that the law “applies to all forms of corrupt obstruction of an official proceeding.” Fischer’s case could have major implications, since Jack Smith also charged Trump under this statute. The Supreme Court is expected to consider Fischer’s case early next year.