COURT PUNTS TRUMP QUALIFYING QUESTION TO CONGRESS The Supreme Court’s Monday decision essentially told congressional lawmakers: You’re the ones who have the power to disqualify Donald Trump from the presidency. Democrats are scrambling on how to handle that. Justices unanimously ruled that it’s not up to the states to decide if Trump doesn’t qualify for the presidency under the Constitution’s “insurrection clause.” Instead, the justices left the question of eligibility up to Congress, while leaving what Congress might do with a potential Trump victory on Jan. 6, 2025 unresolved. Some Democrats have declared Trump an “insurrectionist,” and members like Rep. Adriano Espaillat (D-N.Y.) have unsuccessfully pushed legislation to express the House’s sense that Trump engaged in insurrection. But remember: Those same Hill Democrats slammed their Republican colleagues for objecting to Joe Biden’s win on Jan. 6, 2021 based on debunked theories about the 2020 election. So the court’s punt to Congress puts Democrats in a tough spot. If they embrace the ability to disqualify Trump, they open themselves up to harsh criticism — fairly or unfairly — that they’re repeating the GOP antics they lambasted for years. If they decline to disqualify him, Democratic voters could accuse them of giving Trump a pass on encouraging an insurrection attempt. For now, there’s not much appetite on the left to mount a challenge to the counting of electoral votes for Trump, even if he wins this fall. It’s just not a not a place lawmakers are willing to go politically, with the memories of the Jan. 6 Capitol attack still fresh in many minds. “We should certify whoever wins 270 electoral votes, which I believe will be Biden,” said Rep. Ro Khanna (D-Calif.), a leading progressive voice in the House. Rep. Eric Swalwell (D-Calif.), a frequent Trump antagonist, also said in a text to us that he would vote to count Trump’s electoral votes. Still, illustrating that Democrats will struggle to dismiss the ruling outright, Swalwell said the Court left it up to those in “Congress to determine whether he committed insurrection, not the states.” And former Jan. 6 select committee members said the ruling leaves a role for Congress to play. “The Supreme Court did not find that he wasn't an insurrectionist. The Supreme Court did not find that he did not participate in insurrection,” Rep. Jamie Raskin (D-Md.) said in an interview with us Monday. “The Supreme Court just kicked the whole thing over to Congress saying that Congress needs to act.” Raskin said he was working on legislation to enforce the insurrection clause. It stands no chance of advancing in the GOP-controlled House, and the narrowly divided Senate is also unlikely to act, but Raskin was still hopeful he could pick up some support from the right. “We have to set up a mechanism judicially by which the courts can consider whether someone had engaged in insurrection within the meaning of the Constitution,” he said. “But then, the Congress also has the opportunity by resolution to define a particular event such as January 6, 2021.” Zoe Lofgren, who also served on the Jan. 6 committee, told POLITICO in a statement she is waiting to see how legal experts interpret the ruling. “As I continue to review the Supreme Court justices’ determination regarding ex-President Trump’s eligibility, I hope to hear from legal scholars across the political spectrum about the role Congress can and should play moving forward,” she said in the statement. However, she noted: “Voters should take notice that a person who is Constitutionally ineligible to hold office is nevertheless able to run because of a procedural loophole.” — Nicholas Wu and Daniella Diaz, with an assist from Kyle Cheney
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