Supreme Court hears historic Trump 14th Amendment case: Key moments

Justice Ketanji Brown Jackson pressed Mitchell on the Colorado Supreme Court's finding that the violent attempts by Trump supporters to halt the electoral count on Jan. 6 qualified as an "insurrection" under Section 3.

"Why would this not be an insurrection?" Jackson asked. "What's your argument that it's not?"

"For an insurrection there needs to an organized, concerted effort to overthrow the government of the United States through violence. And this riot that occurred ..." Mitchell began.

Jackson interrupted, "So, the point that a chaotic effort to overthrow the government is not an insurrection?"

"We didn't concede that it's an effort to overthrow the government either Justice Jackson, right?" Mitchell continued. "None of these criteria were met. This was a riot. It was not an insurrection. The events were shameful, violent, all those things. It was not an insurrection as that term is used in Section 3."

The justices, so far, are avoiding thornier questions around Trump's conduct on Jan. 6 and instead focusing on Section 3 of the 14th Amendment.

The provision reads: "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State ..."

Key in the debate is whether Trump is an "officer of the United States" as described by Section 3 and whether or not it is self-executing.

Mitchell, continuing to argue Congress must enforce Section 3, argued state officials can't take action even if a candidate were to openly acknowledge they participated in an insurrection against the United States.

"Because even if candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office and even win election to office and then see whether Congress lifts that disability after the election," Mitchell said.

"This happened frequently in the wake of the 14th Amendment, where confederate insurrectionists were elected to Congress, and sometimes they obtained a waiver, sometimes they did not," he continued.

Justice Samuel Alito pressed Mitchell on the impact the Colorado decision may have on other states.

Mitchell warned about the possibility of national disuniformity.

"Your question gives rise to an even greater concern because if the decision does not have conclusive effect on other lawsuits, it opens the possibility that a different factual record could be developed in some of the litigation that occurs in different states and different factual findings could be entered by state trial judges," he said. "They might conclude, in fact, that President Trump did not have any intent to engage in incitement or make a finding that differs from what this trial court found."