Nearly every Republican senator and 130 GOP House members are urging the US Supreme Court to keep Donald Trump on 2024 ballots as the justices prepare to hear whether he should be disqualified under the insurrection clause of the 14th Amendment.
Among the members of Congress who joined Thursday’s brief is Senate Minority Leader Mitch McConnell, who previously characterised the attack on the US Capitol on January 6 as a “violent insurrection” and, in remarks on the Senate floor during Mr Trump’s impeachment for inciting it, said there is “no question” he was “practically and morally responsible for provoking the events of that day,” when a mob assaulted the halls of Congress “in his name”.
He was among 42 Senate Republicans telling Supreme Court justices that Congress, not the courts, should decide whether to disqualify a candidate.
Senators Bill Cassidy, Susan Collins, Lisa Murkowski and Mitt Romney – all of whom voted to convict Mr Trump for inciting an insurrection – did not join the brief.
Neither did Senators Rand Paul or Steve Daines, who submitted a separate brief supporting the former president.
Senator Todd Young, among a handful of Republican Trump critics in the senate, also did not join the brief.
The 37-page filing from Republican members of Congress questions whether Mr Trump bore any responsibility for January 6, after a Colorado Supreme Court decision at the centre of the high court’s case determined that his actions “constituted overt, voluntary, and direct participation in the insurrection.”
Last month’s historic ruling disqualified the former president from appearing on the state’s 2024 presidential ballots under Section 3 of the 14th Amendment, which prohibits anyone who has sworn an oath to uphold the Constitution and “engaged in insurrection or rebellion” from holding public office.
The case was appealed to the Supreme Court as Trump v Anderson, among more than a dozen challenges to Mr Trump’s eligibility to appear on 2024 ballots under the provisions of the 14th Amendment.
Supreme Court justices will hear oral arguments on the Colorado case on 8 February.
Congressional Republicans argue that enforcing Section 3 would require legislation from Congress to “protect” candidates from “abuse by state officials.” The Colorado decision “short-circuited” and “tramples” congressional authority, they argue.
Lawmakers “have a strong interest in ensuring that the rules for eligibility for federal office are clear, objective, and neutral, rather than malleable and conveniently applied to ensnare political opponents,” they wrote.
“In other words,” they wrote, “Section 3 enforcement mechanisms are left to Congress, not to a patchwork of state officials and courts.”
The filing also scrutnises the “dramatic consequences” of an “exceedingly broad” interpretation of “engaged in” insurrection, suggesting that Mr Trump’s actions fell outside those bounds.
A decision from the Supreme Court on the 14th Amendment challenge will likely have nationwide impacts, as voters and state officials challenge his eligibility in courts across the country. A challenge to a similar decision from Maine’s top elections official is on hold until the high court weighs in.
The justices are also likely to review whether Mr Trump has presidential “immunity” from charges connected to his attempts to overturn the 2020 presidential election, pending an imminent decision from a federal appeals court.
A three-judge federal appeals court panel heard arguments in that case earlier this month. An appeal of that case would likely head to the high court.