Trump’s legal arguments for staying on the ballot are embarrassingly weak

S E E D E D   C O N T E N T

Well, the   Supreme Court   fight over our insurrectionist former president is finally upon us.

On Thursday, the Court will hear oral arguments in   Trump v. Anderson , the case asking whether Colorado’s highest court was right to remove former   President Donald Trump   from the ballot because of his role in the January 6 insurrection. If the justices affirm the state court, that would most likely mean that Trump is removed from the ballot everywhere — because a constitutional ruling by the Supreme Court binds every judge in the country.

Section 3 of the 14th Amendment provides that no person who previously held high office may serve in such office again if they “ have engaged in insurrection or rebellion ” against the Constitution. The Colorado Supreme Court ruled that Trump violated this clause when he   incited his followers to attack the US Capitol , in a failed attempt to overturn the   2020 election .

Anyone who thinks   Anderson   will be the deus ex machina that saves America from the Bad Orange Man, however, would do well to remember   who sits on the Supreme Court of the United States . The Court has a 6-3 Republican supermajority, and half of the Republican justices were appointed by Trump.

That said, Trump’s lawyers, in their   brief to the justices , gave his fellow partisans on the Court little to work with. As election law scholar Rick Hasen writes, “the arguments that Trump has advanced in his most recent brief are   weaker and more hedged than I would have expected ,” and “it’s hard to know exactly where the court goes from here,” given this meager performance by the former president’s attorneys.

So, if you are a gambler, you’d be wise to bet on Trump prevailing in the Supreme Court, even though it is far from clear how the justices will justify such a decision.

Trump’s legal arguments, briefly summarized

Trump’s brief leaves what is probably his strongest legal argument on the table.

In the Colorado Supreme Court, two of the dissenting justices suggested that the somewhat truncated process a trial court used to determine whether Trump should remain on the ballot   did not provide him with due process . But Trump’s brief does not make this argument. Indeed, it only mentions it in passing, in a section of the brief describing what happened in the lower courts.

One possible explanation for this oversight is a decision holding that Colorado committed a process violation wouldn’t resolve the question of whether Trump gets to stay on the ballot. Some other state could disqualify Trump by conducting a trial that meets whatever procedural threshold is required, and Colorado could even reopen this issue by retrying Trump.

But Trump’s brief leans into other arguments that would merely delay a reckoning over Trump’s eligibility to be president. Specifically, Trump accuses Colorado’s highest court of violating the state’s laws when it ruled against him. This is a weak argument because each state’s highest court, and not the US Supreme Court, is generally understood to   have the final word on all questions of state law .

In its last term, however, the Court considered a many-times-rejected legal argument, known as the “independent state legislature doctrine” (ISLD), that would allow the justices to bypass this rule. But the Court   almost entirely neutralized the ISLD   after a bipartisan array of legal experts warned the justices that this theory would lead to chaotic and untenable results. Even Steven Calabresi, the co-chair of the conservative Federalist Society, told the justices that the ISLD “ flout[s] core tenets of the American Founding .”

Trump, in other words, is asking the Court to open a Pandora’s box that it slammed shut after hearing widespread alarm from across the legal profession — including some of the conservative movement’s most dedicated activists.

And then there’s Trump’s primary argument for staying on the ballot. The 14th Amendment uses the term “ officer of the United States ” to describe former officials who are disqualified from serving after engaging in an insurrection. Trump makes the extraordinary argument that the president, the highest-ranking officer-holder in the United States and the commander-in-chief of its military,   does not qualify as an officer of the United States .

In support of this argument, Trump’s legal team points to a handful of constitutional provisions — all drafted nearly a century before the 14th Amendment was ratified — that seem to exclude the president from the term “officers of the United States.” One provision, for example, says that the president “shall Commission all the Officers of the United States.” Read in isolation, this provision does suggest that the president is not an officer.

But the Constitution is riddled with other provisions suggesting the president is, in fact, an officer of the United States. As the Colorado Supreme Court noted, “ the Constitution refers to the Presidency as an ‘Office’ twenty-five times .”

The plaintiffs challenging Trump’s eligibility point to   myriad evidence   indicating that, by the time the 14th Amendment was ratified in 1868, the term “officer of the United States” was understood to include the president. This includes an   1823 opinion   by Chief Justice John Marshall, which states that if an office-holder is “employed on the part of the United States, he is an officer of the United States.”

It also includes an opinion by Henry Stanbery, who served as US attorney general while the 14th Amendment was in the process of ratification, which said that the term “officers of the United States” includes any “person who has at any time prior to the rebellion held any office, civil or military, under the United States, and has taken an official oath to support the Constitution of the United States.”

So the bulk of the evidence supports the unremarkable proposition that the highest-ranking official in the United States government is, indeed, an officer of the United States. And it’s hard to imagine any judge signing onto Trump’s argument in a case that didn’t involve the same brain-scramblingly high political stakes as   Trump v. Anderson.   Trump’s lawyers claim that the framers of the 14th Amendment intended to ban former officials who engage in insurrection from holding office,   unless they held the most powerful office in the United States government .

Indeed, their argument is even more absurd than that. As the   Anderson   plaintiffs note in their brief, Trump is proposing a “ Trump-only exception ” to the 14th Amendment because he is the only president (aside from George Washington) who never served in a sub-presidential office. Everyone agrees that former senators (like Presidents Biden and Obama), former governors (like President George W. Bush), and the like are disqualified if they engage in insurrection. So Trump is claiming that he and he alone among former presidents is immune from the 14th Amendment.

It’s clear that Trump’s lawyers think this is their strongest argument. Trump’s brief   spends about 26 pages   laying out its case for leaving Trump on the ballot. Half of those pages are devoted to the claim that the president is not an officer of the United States.

Trump’s   lead attorney is Jonathan Mitchell , a lawyer who specializes in trying to convince judges to give legal texts the same sort of malicious construction that “ The Monkey’s Paw” gives to wishes . Mitchell is best known as the   mastermind behind Texas’s SB 8 , an anti- abortion   law enacted while   Roe v. Wade   was still in effect, which allows private bounty hunters — and   only private bounty hunters   — to collect limitless bounties from abortion providers.

The law was written that way because the Supreme Court has held that plaintiffs alleging that a state law violates the Constitution should   sue the state official charged with enforcing that law , and Mitchell reasoned that, if state employees did not enforce the law, it could not be blocked.

The Supreme Court backed this play in its 5-4 decision in   Whole Woman’s Health v. Jackson   (2021). So the fact that Mitchell’s primary argument in support of Trump would lead to an absurd result is no guarantee that it won’t prevail. This Supreme Court has already shown that it is willing to endorse truly preposterous arguments raised by the very same lawyer Trump hired to represent him, at least when those preposterous arguments align with the justices’ personal preferences.

Trump asks the justices to revive the most dangerous legal argument the Court has heard recently

Last June, the justices decided a case that filled even many sober-minded conservatives with a sense of dread:   Moore v Harper   (2023), the case that led one of the Federalist Society’s top leaders to warn that the Republican Party was pushing an argument that “ flout[s] core tenets of the American Founding .”

Moore   turned on a pair of constitutional provisions that say the method each state uses to elect federal office-holders shall be determined by the “legislature” of that state.

The Supreme Court first held in   Davis v. Hildebrant   (1916) that the word “legislature,” when used in this context, refers to whatever body within a state has the power to make laws. So a state governor may veto an election-related bill, even though governors are typically members of a state’s executive branch and not its legislative branch. Similarly, a state may use ballot initiatives or other forms of direct democracy to enact election laws, even though most people who vote for such initiatives are not members of the state’s elected legislature.

Davis   has been reaffirmed by the Court   many times over the course of the last century . Nevertheless, the independent state legislature doctrine claims that these decisions were wrong, and only a state’s elected legislative branch may decide how a state conducts federal elections.

If taken seriously, this theory is an   existential threat to US democracy . Under the strongest version, state governors cannot veto laws impacting federal elections, state courts cannot strike down those laws if they violate the state constitution, and state constitutional provisions protecting   voting rights   effectively cease to function. It could have allowed gerrymandered state legislatures to cancel the   2024 presidential election   and simply award their state’s electoral votes to Trump.

The good news is that none of this parade of horribles is likely to happen. Though five of the Court’s six Republican appointees had, at some point in the past, endorsed various versions of the doctrine, the Court’s opinion in   Moore   largely shut it down .

That said,   Moore   included an ominous line suggesting the Supreme Court could revive the doctrine if five justices think that a state court read that state’s own law very badly. “State courts,” according to   Moore , “may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures.”

It’s not at all clear what this line means or just how badly a state court must depart from the federal justices’ preferred reading of a state statute. But Trump’s brief claims that   Anderson   is such a case.

Specifically, Mitchell points to a provision of Colorado law that says “ each political party that has a qualified candidate   entitled to participate in the presidential primary election pursuant to this section is entitled to participate in the Colorado presidential primary election,” and he accuses the state Supreme Court of misreading this provision to exclude presidential aspirants who aren’t “qualified candidates.”

It’s fair to say that this provision has more to say about which parties can participate in a presidential election than it does about which individuals may do so — although the reference to “a qualified candidate” does imply that some candidates do not qualify.

But even if you accept Mitchell’s reading of this provision, a different provision of Colorado law says that the state’s law governing presidential primaries should “ conform to the requirements of federal law ” — and Section 3 of the 14th Amendment, like all provisions of the Constitution, is a federal law. So, at most, the state Supreme Court is guilty of citing the wrong provision of state law to support the proposition that constitutionally ineligible candidates may not appear on a presidential primary ballot.

It would be extraordinary if the Supreme Court ruled that this alleged, penny-ante citation error so “exceed[s] the bounds of ordinary judicial review” as to justify invoking the independent state legislature doctrine — a doctrine the Supreme Court has rejected many times over the course of a century and that it recently rejected after   an array of retired generals and admirals   warned the justices that it threatens   national security .

And what would the US Supreme Court hope to accomplish by such a decision? If the justices rule that the Colorado decision must be tossed out because of a minor error in the court’s construction of state law, that would do nothing to resolve the broader question of whether Trump is disqualified under the 14th Amendment.

The Court, in other words, would deploy one of the most dangerous weapons in its doctrinal arsenal in order to delay resolution of this case by maybe a few weeks.

Trump makes the weakest version of his best argument

As noted above, Trump’s brief does not even raise his strongest argument: the argument that Colorado’s courts   failed to provide him with due process .

That said, the brief does make one argument that is, at least, plausible. But Mitchell devotes only about two pages to his best argument, and he makes a weak version of this argument to boot.

The Colorado Supreme Court concluded that Trump engaged in an insurrection when he made a series of public statements that incited his supporters to attack the Capitol, including a January 6 speech where, in the state Supreme Court’s words, Trump “ literally exhorted his supporters to fight at the Capitol .”

Among other things, Trump told his supporters that “we’re going to walk down to the Capitol” where they “have to show strength” and “fight like hell.”

Mitchell argues that the First Amendment does not permit Trump to be sanctioned for these and other, similar statements. The reason why this is a relatively strong argument, at least compared to the other arguments in Trump’s brief, is that, while the Supreme Court has held that speech that incites people to illegal action is not protected by the Constitution, the legal standard for what constitutes “incitement” is very hard to clear.

The seminal case is   Brandenburg v. Ohio   (1969), which held that the government may not “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” And it is notoriously difficult for the government to meet this test.

Brandenburg   involved a speech at a Ku Klux Klan rally, attended by “12 hooded figures, some of whom carried firearms,” where a speaker said that “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” Yet, even though this speech advocated violence against the highest US officials, the Court tossed out the law used to prosecute this speaker, holding that a state cannot punish “mere advocacy” of violence, but only “imminent lawless action.”

Trump’s speech, however, was quite different from the Klansman’s speech in   Brandenburg . For starters, while the   Brandenburg   speech took place at a farm in Ohio — far away from the president, Congress, or the Supreme Court — Trump delivered his speech to a crowd of angry supporters as they gathered to march on the Capitol itself.

There were also strong indications that many members of this crowd understood Trump’s speech to be a direct call for an immediate insurrection. According to the Colorado Supreme Court, “after President Trump instructed his supporters to march to the Capitol, members of the crowd shouted,   ‘[S]torm the capitol!’; ‘[I]nvade the Capitol Building!’; and ‘[T]ake the Capitol!’ ”

And, of course, Trump’s speech was, in fact, followed by a mob of his supporters — many of whom had just listened to his speech — invading the Capitol in an attempt to overthrow the election that Trump had just lost.

Mitchell’s discussion of   Brandenburg   is brief and difficult to parse, but he   appears to argue that Trump’s speech was not “likely” to result in violence . As Mitchell correctly notes, Trump’s speech is unprotected by the First Amendment only if it was “‘intended’ and ‘likely’” to incite imminent violence,” and he notes that a speech cannot lose First Amendment protections solely based on “the intent of the speaker.” So, read together, these two claims suggest that Mitchell thinks Trump’s statements were not likely to result in violent or lawless action.

But this argument is difficult to take seriously. As the Colorado Supreme Court explains, Trump’s January 6 speech was only one in a series of statements where Trump seemed to encourage violence or where Trump cheered on his supporters after they committed violence on his behalf.

Georgia election official Gabriel Sterling, for example, publicly warned Trump “to ‘stop inspiring people to commit potential acts of violence’ or ‘[s]omeone’s going to get killed,’” but Trump responded by “retweeting a video of Sterling’s press conference with a message repeating the very rhetoric that Sterling warned would result in violence.” Similarly, after a November 14, 2020, pro-Trump rally turned violent, Trump responded by justifying this violence “as self-defense against ‘ANTIFA SCUM.’”

The single most damning piece of evidence against Trump, meanwhile, is that one hour after Trump learned that a mob of his supporters had attacked the Capitol, the former president tweeted that “ Mike Pence didn’t have the courage   to do what should have been done to protect our Country and our Constitution.” So, at the very moment that the January 6 insurrection was underway, Trump didn’t just egg on the insurrectionists, he suggested that they target   Pence .

While   Brandenburg   sets a high standard for incitement, Trump’s lawyers do not make any arguments that could justify tossing this case out on First Amendment grounds. Most statements that advocate violence are not likely to result in imminent violence. But Trump told a mob made up of his supporters to target a specific individual as that mob was actively engaged in criminally violent activity.

This is the equivalent of standing on the sidelines of a fistfight and yelling at one of the combatants to “beat him harder” while the fight is ongoing — and the law generally   permits someone who actively cheers on an ongoing fight   to face legal consequences.

Trump v. Anderson   is a frustrating case. It’s hard to imagine this Supreme Court removing Trump from the ballot. But Trump and his lawyers give the justices very little to rely on when they sit down to write an opinion ruling in favor of Trump. Mitchell’s arguments range from silly (the president is not an “officer of the United States”) to unpersuasive (Trump’s many statements encouraging violence were not likely to result in violence) to outright dangerous (the entire independent state legislature doctrine).

If that’s the best that Trump’s supporters can come up with, it will be very difficult for the justices to show their partisan loyalty without embarrassing themselves.