Former President Trump’s lawyers are set for a historic Supreme Court showdown Thursday as they appear before the justices in an attempt to demolish lawsuits challenging Trump’s ballot eligibility under the 14th Amendment.
Thursday’s oral arguments are set to be the most momentous milestone yet in the patchwork of challenges seeking to prevent Trump’s return to the White House over his actions surrounding the Jan. 6, 2021, Capitol attack.
The Supreme Court agreed to take up the matter after Colorado became the first state to disqualify Trump, and their decision is poised to dictate Trump’s ballot status nationwide. Touting his recent wins in Iowa and New Hampshire, the former president’s team warned the justices that disqualifying Trump would “unleash chaos and bedlam.”
“In our system of ‘government of the people, by the people, [and] for the people,’ the American people— not courts or election officials — should choose the next President of the United States,” Trump’s lawyers wrote in their final pitch before Thursday’s arguments.
Here’s what Trump’s lawyers are expected to argue before the Supreme Court.
Trump didn’t engage in insurrection
To disqualify Trump, the Colorado Supreme Court found Trump “engaged in insurrection.”
Trump’s lawyers, however, argue that Jan. 6 wasn’t an insurrection as defined in the clause, which was originally ratified after the Civil War and intended to prevent former Confederates from returning to federal office.
Even if it was, Trump’s team contends the Colorado voters who sued still can’t connect the Capitol attack to their client
With the Jan. 6 riot now front-and-center for the Supreme Court, legal observers are closely watching how much the justices delve into the politically contentious issue during Thursday’s arguments.
Alex Reinert, a Benjamin N. Cardozo School of Law professor, noted there also is the question of whether the Supreme Court will give deference to the lower court’s factual findings on Trump’s conduct.
“There’s no question that there was enough evidence for the trial court to find that he engaged in insurrection. I don’t know that the court is going to do that,” said Reinert, who clerked for Justice Stephen Breyer the term the court decided Bush v. Gore.
“And I think the court has to answer the question for itself, which, frankly, is a little bit fraught for it to do.”
Presidents are not a federal ‘officer’
Many legal observers believe the Supreme Court won’t reach that contentious insurrection issue at all. Instead, the court could keep Trump’s name on the ballot by reversing the lower ruling on any one of several other issues.
Among those include Trump’s contention that the 14th Amendment’s insurrection ban doesn’t apply to the presidency.
The argument is two-fold: Trump first argues he did not previously hold a covered position, as the ban only reaches people who engaged in insurrection after serving as “an officer of the United States.”
Second, Trump notes that the Amendment only prevents those covered individuals from holding “any office…under the United States,” asserting that category similarly doesn’t include the presidency.
“Trump’s briefing so far has really leaned into the argument that the presidency is not an office of the United States, which means that presidency is not covered by Section 3, and therefore, this whole case should disappear,” said Derek Muller, a law professor at Notre Dame who filed a brief in the matter.
Backed by some conservative legal scholars, the argument leans on how the Constitution uses the term “officer” in other sections.
“They don’t use the phrase officer the United States to include the president anywhere else in the Constitution,” noted John Yoo, a law professor at the University of California, Berkeley who filed a friend-of-the-court brief backing Trump.
A former clerk to Justice Clarence Thomas, Yoo and other proponents also note how the 14th Amendment’s drafters spelled out other positions the insurrection ban applies to, but they did not explicitly list the presidency.
“Generally, in law, where the writers say, we want to include A, B, C, and E, you don’t naturally say, ‘oh, you should have included D and we’re just going to include it for you.’ That’s kind of the approach people who think the presidency should be included are using,” said Yoo.
On the other hand, the challengers’ attorneys argued “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.”
Section 3 of the 14th Amendment is not self-executing
Trump next contends that the insurrection ban cannot be enforced without legislation from Congress.
He largely relies on Griffin’s Case, a decision authored by then-Chief Justice Salmon Chase as he presided over a lower court in 1869, one year after the 14th Amendment was ratified. Chase opted against disqualifying a judge even though they were an ex-Confederate, ruling that “legislation by Congress was necessary” to enforce the insurrection ban.
All sides agree it is not binding precedent, and critics have suggested Chase’s decision was impacted by his political ambitions to be president and should be discredited.
Trump and his backers have extensively cited the case, suggesting it as a persuasive authority the justices should look to in their deliberations.
“Here’s what someone who was a key member of the time — he was Chief Justice of the United States, and before that, he was a member of Lincoln’s cabinet and one of the great abolitionist lawyers; in a way he was more famous than Lincoln — and this is what he thought,” said Yoo, whose brief cites the case a handful of times.
While Trump argues the plaintiffs should defer to Congress, detractors note that nothing suggests Congress believed federal legislation was the only way to enforce the rule – that states can’t also enforce their own laws or regulations.
Section 3 prevents holding office, not running for it
Trump also argues he must remain on the ballot because the ban only prevents individuals from “holding” office, not seeking it.
“Section 3 is a prohibition only on holding office, and Congress can waive this prohibition between now and the end of the next presidential term,” Trump’s attorneys wrote.
But that argument only kicks things down the road, Muller said.
“If he’s elected, if he wins the majority vote, does this put pressure on Congress to refuse to count votes cast for him? Does this put pressure on the legal system to challenge his eligibility after he’s taken office?” Muller said. “Who knows what could come from that.”
Colorado Supreme Court violated state law
Trump’s final argument purports he cannot be removed from the ballot because the Colorado courts that deemed him ineligible incorrectly interpreted state law.
“If the courts interpret a state law so badly it mangles the intent of the legislature, then, in effect, it’s…arrogated power unto itself in such a way that it has really usurped the legislature of its constitutional function,” Muller said.
Trump’s counsel argued that Colorado’s judiciary can only intervene in ballot disputes when an individual “charged with a duty” under the Colorado Election Code – like Colorado Secretary of State Jena Griswold – “has committed or is about to commit a breach or neglect of duty or other wrongful act.”
If Section 3 only bars individuals from holding office, not seeking or winning it, Griswold “will not breach or neglect any ‘duty’ or commit a ‘wrongful act’ under the Fourteenth Amendment by listing President Trump on the ballot,” Trump’s lawyers said.
“It’s a pretty open-ended argument that has not gotten a lot of traction, and it would only apply to Colorado,” Muller said. “I think there’s a limitation to how this applies in this context, and maybe a reason why it didn’t get a lot of attention – it might not go very far.”
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