Tweet Share Share Comment When the Supreme Court hears oral argument on Feb. 8 over Colorado’s decision to disqualify Donald Trump from appearing on the 2024 ballot on grounds that he engaged in insurrection and therefore violated part of the 14th Amendment, the odds have got to be in Trump’s favor. There are just so many legal and factual issues that have to be resolved just right for the challengers to Trump’s eligibility to succeed. Trump only has to win on one of the issues and he’s back on the ballot, not just in Colorado, but potentially across the country. Still, a look at Trump’s most recently filed Supreme Court brief shows some odd strategic choices, most notably exposing some weaknesses in his position and revealing the Litigant in Chief as hedging some bets for another potential trip to the Supreme Court one year from now.
To understand the strategic choices made in Trump’s brief on the merits, let’s back up first to what happened in Colorado. A group of Republican voters sued the Colorado secretary of state under provisions of Colorado’s elections code arguing that she had to exclude Trump from the ballot. The voters relied upon Section 3 of the 14th Amendment, which provides that:
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 legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.
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The Colorado voters claimed that Trump engaged in an insurrection by, among other things, encouraging the storming of the U.S. Capitol on Jan. 6, 2021, to stop Congress’ counting of the Electoral College votes that formally declared Trump’s opponent Joe Biden as winner of the 2020 presidential election.
Trump and the Colorado Republican Party entered the case, and the trial court held a five-day trial. The trial court batted aside almost all of Trump’s arguments, including that the First Amendment protected his right to fire up the crowd about the supposedly stolen election just as Congress was going to count the Electoral College votes. It concluded that Trump had engaged in insurrection. But ultimately the trial court ruled for Trump on what a layperson would surely call a technicality: The court ruled that as used in Section 3, “ ‘officers of the United States’ did not include the President of the United States” and that the presidency is not an “office … under the United States.” The Colorado Supreme Court disagreed only with this last part of the trial court’s reasoning, accepting other arguments, including the trial court’s factual conclusion that Trump engaged in insurrection. It ordered Trump off the ballot, leading to the current case before the U.S. Supreme Court.
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There are many ways that Trump could win in the Supreme Court. For example, the court could accept the First Amendment defense Trump has offered. Or it could agree with Trump that states can only consider disqualifying candidates under Section 3 if Congress passes a statute authorizing it. Or it could agree that Trump did not have an adequate chance to defend himself in the state court. Or it could hold that the evidence was not sufficient to show that he actually “engaged in insurrection.” Or it could resuscitate an extreme version of the “independent state legislature” theory that Colorado law did not authorize Colorado courts to remove Trump from the ballot for violating Section 3. Winning on some of these issues would mean not only that Trump would be back on the ballot in Colorado, but potentially throughout the country.
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Read More What’s most interesting about Trump’s brief, though, is what it leads with—and what it leaves out, telling us a lot about where Trump thinks he has the best shot at the Supreme Court and the strength of his arguments. Trump leads with the hypertechnical argument accepted by the trial court (but rejected by Colorado’s Supreme Court) that Trump is not an “officer of the United States” for purposes of Section 3. Trump devotes about three times as much space to this argument compared to his other arguments.
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Briefs are typically written to put the strongest argument first. Why would Trump think the officer argument is the strongest? It seems weak: As Trump’s challengers argue in the Supreme Court: “It would defy common sense to hold that Section 3 disqualifies every oath-breaking insurrectionist officer (down to postmaster or county sheriff) except the most powerful one—a former Commander-in-Chief.” This is especially true given the historical context of the amendment’s passage. As conservative scholar Sam Bray recently wrote over at the Volokh Conspiracy:
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It is hard to imagine that the Reconstruction Congress that proposed Section 3 of the Fourteenth Amendment, and the state legislatures that ratified it—in the middle of an intense struggle with President Andrew Johnson, and focused on all the problems that could come from a President who was not on board with reconstruction—would say that the two people who should be allowed to be Confederates would be the President and Vice President.
Trump or his lawyers must have calculated that a technical argument would be more appealing to the conservative majority than his other ones, such as an argument that Trump had the constitutional right to encourage his supporters to invade the Capitol. Deciding matters on a technicality would allow the Supreme Court to hide behind legal jargon and avoid weighing in on Trump’s conduct. And it would allow Trump to claim a victory (I can imagine him crowing about a “complete and total vindication”) that would shut down disqualification efforts across the country and that could inure to his political benefit. Further, Trump’s lawyer probably does not want to get up in front of the justices at oral argument and parse Trump’s comments made in the speech before the Capitol invasion about why his supporters need to “fight like hell.” (Trump’s brief says he made that comment “metaphorically.”)
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Equally interesting is an argument that Trump left out of his brief on the merits. When he first petitioned the Supreme Court to take the Colorado case, Trump opened with the argument that disqualification under Section 3 is a question that only Congress, not the courts, has the power to decide. In legal parlance, it’s a “nonjusticiable political question” left for Congress alone. That argument has disappeared entirely from Trump’s current merits brief in the Supreme Court.
It’s a pretty weak argument that relies on a different part of the 14th Amendment granting Congress power to “enforce” all the amendment’s provisions. Giving Congress the power to enforce the amendment doesn’t mean states cannot enforce it too. States have an interest in making sure that its voters don’t throw out their votes by voting for candidates who are not qualified to serve. But I doubt Trump abandoned the argument merely because it was weak. After all, Trump’s lead argument is pretty weak in and of itself.
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The reason Trump likely abandoned it is because of what could happen down the line. In an amicus brief I filed in this case with professor Ned Foley and Republican attorney Ben Ginsberg, we explained what would happen if the Supreme Court punts in the disqualification case, leaving the issue for Congress to resolve. (We did not take a position on whether Trump should be disqualified, only that the court needs to tell us definitively one way or the other so the country can more likely avoid political instability, potential violence, and voter disenfranchisement.)
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Without the court weighing in on disqualification before the election, there’s a real chance that Trump could appear to beat Biden in the Electoral College vote in November, followed by members of Congress declaring on Jan. 6, 2025, as Electoral College votes are counted, that Trump is disqualified from serving given his participation in an insurrection. If that happens, Trump is going to want to go to the Supreme Court to ask them to second-guess or overrule a congressional determination about disqualification. That’s of course a recipe for chaos.
Trump’s abandonment of the political question argument signals additional lack of confidence in his political position—he thinks he might need the Supreme Court to weigh in on the question after the election and doesn’t want to push an argument now against judicial review.
The bottom line is that it’s still Trump’s disqualification case to lose, but the arguments that Trump has advanced in his most recent brief are weaker and more hedged than I would have expected. It’s hard to know exactly where the court goes from here.
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