Policy Backgrounders

Presidential Immunity and Eligibility

February 09, 2024

Trusted Insights for What’s Ahead™

Two major events this week—a decision of the US Court of Appeals for the District of Columbia and oral arguments in the Supreme Court in a separate case—have direct implications for whether a President enjoys immunity after leaving office and the criteria under which a candidate for President can be disqualified under Section 3 of the Fourteenth Amendment. Colorado’s Supreme Court had removed former President Trump from its ballot, ruling that he was ineligible under Section 3 because he had participated in insurrection on January 6, 2021.

• The immunity case could move quickly. If the Supreme Court does not accept the case, former President Trump’s trial for charges relating to the events of January 6, 2021, could begin as early as late March, though it is likelier to begin later in the year.
• During oral argument, the Justices seemed skeptical about affirming Colorado’s decision to remove former President Trump from the ballot there, citing both legal and practical concerns.
• But the eligibility case is quite complex, and there are a wide variety of options the Supreme Court could choose, ranging from upholding Colorado’s decision to remanding the case, or overturning the Colorado decision. Chief Justice John Roberts signaled that one key factor would be the definition of “insurrection” under Section 3.