Trump’s flimsy arguments for remaining on the ballot in the Supreme Court

The long-awaited Supreme Court battle regarding our former president, who incited insurrection, has finally arrived.

On Thursday, oral arguments will be presented in the case of Trump v. Anderson. This case seeks to determine whether the Colorado Supreme Court’s decision to remove former President Donald Trump from the ballot due to his involvement in the January 6 insurrection was justified. Should the Supreme Court justices uphold the state court’s ruling, it would likely result in Trump’s removal from the ballot nationwide, as constitutional rulings by the Supreme Court hold authority over all judges across the country.

In accordance with Section 3 of the 14th Amendment, individuals who have previously held high office are prohibited from serving in that capacity again if they have participated in insurrection or rebellion against the Constitution. The Colorado Supreme Court has determined that Trump violated this clause by inciting his supporters to attack the US Capitol, as part of a failed effort to overturn the 2020 election.

It’s important to keep in mind that Anderson won’t single-handedly save America from the Bad Orange Man, considering the composition of the Supreme Court. With a 6-3 Republican supermajority, half of the Republican justices on the Court were appointed by Trump.

In their brief to the justices, Trump’s lawyers presented weak and cautious arguments, leaving little room for his fellow partisans on the Court to work with. Election law scholar Rick Hasen noted that the arguments put forth by Trump are not as strong as expected, making it difficult to predict the Court’s next steps in light of the former president’s attorneys’ underwhelming performance.

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If you’re someone who enjoys taking risks, it would be a smart move to place your bets on Trump emerging victorious in the Supreme Court. However, it remains uncertain how the justices will ultimately justify their decision.

Trump’s legal arguments, briefly summarized

The strongest legal argument from Trump’s brief is left untouched.

Two justices in the Colorado Supreme Court expressed their concerns over the trial court’s expedited process in deciding whether Trump should stay on the ballot, arguing that it did not afford him due process. However, Trump’s brief does not address this issue directly. Instead, it briefly mentions the topic while describing the proceedings in the lower courts.

One reason why this oversight may have occurred is because if a decision is made that Colorado has committed a process violation, it wouldn’t necessarily resolve the issue of whether Trump should be allowed to stay on the ballot. It is possible that another state could disqualify Trump by conducting a trial that meets the necessary procedural requirements. Furthermore, Colorado could potentially reopen this matter by retrying Trump.

Trump’s brief focuses on other arguments that would only postpone a determination of his eligibility to serve as president. He specifically alleges that Colorado’s highest court violated the state’s laws when it ruled against him. However, this argument is weak as the highest court of each state, rather than the US Supreme Court, is typically considered to have the ultimate authority on matters of state law.

During its previous term, the Court examined a legal argument called the “independent state legislature doctrine” (ISLD), which had been rejected numerous times before. This doctrine would have allowed the justices to circumvent the general rule. However, the Court significantly undermined the ISLD following warnings from a diverse group of legal experts, who cautioned that this theory would result in chaotic and unworkable outcomes. Even Steven Calabresi, the co-chair of the conservative Federalist Society, informed the justices that the ISLD goes against fundamental principles of the American Founding.

Trump is essentially requesting the Court to reconsider a decision that had previously caused significant concern among legal experts and even conservative activists. This decision had effectively closed a Pandora’s box, and now Trump wants it to be reopened.

Trump’s main argument for remaining on the ballot revolves around the interpretation of the 14th Amendment. According to this amendment, individuals who have participated in an insurrection are disqualified from serving as an “officer of the United States.” Trump takes an unconventional stance by asserting that despite being the president, the highest-ranking officer and the commander-in-chief of the military, he does not fall under the category of an “officer of the United States.”

Trump’s legal team supports this argument by referring to several constitutional provisions that were drafted before the ratification of the 14th Amendment, which appear to exclude the president from being considered as “officers of the United States.” One provision, for instance, states that the president “shall commission all the Officers of the United States.” When read on its own, this provision does imply that the president is not an officer.

The Constitution contains several provisions that indicate the president’s role as an officer of the United States. In fact, the Constitution refers to the presidency as an “office” twenty-five times, as noted by the Colorado Supreme Court.

The plaintiffs who are questioning Trump’s eligibility argue that there is a wealth of evidence suggesting that, when the 14th Amendment was ratified in 1868, the definition of “officer of the United States” encompassed the president. One piece of evidence is an 1823 opinion by Chief Justice John Marshall, which asserts that if someone is “employed on behalf of the United States, they are considered an officer of the United States.”

According to Henry Stanbery, who served as US attorney general during the ratification of the 14th Amendment, the term “officers of the United States” encompasses individuals who have previously held any civil or military office under the United States and have taken an official oath to support the Constitution.

The majority of the evidence strongly supports the simple fact that the highest-ranking official in the United States government is indeed considered an officer of the United States. It is difficult to envision any judge endorsing Trump’s argument in a case that doesn’t carry the same incredibly high political consequences as Trump v. Anderson. According to Trump’s legal team, the authors of the 14th Amendment intended to prohibit former officials who participated in insurrection from holding office, unless they occupied the most influential position in the United States government.

The argument presented by the Anderson plaintiffs in their brief further highlights the absurdity of Trump’s proposal. They point out that Trump is essentially advocating for a “Trump-only exception” to the 14th Amendment. This exception would apply only to him since he is the only president, aside from George Washington, who did not serve in a sub-presidential office. It is universally agreed upon that former senators (such as Presidents Biden and Obama), former governors (like President George W. Bush), and others would be disqualified if they were involved in insurrection. Therefore, Trump is asserting that he is the sole former president who should be immune from the provisions of the 14th Amendment.

Trump’s lawyers believe that this is their most compelling argument. In their brief, which spans approximately 26 pages, they make a strong case for keeping Trump on the ballot. Interestingly, nearly half of these pages are dedicated to asserting that the president does not hold the position of an officer of the United States.

Jonathan Mitchell, Trump’s lead attorney, is an expert in manipulating legal texts to give them a harmful interpretation, much like the infamous story “The Monkey’s Paw” does with wishes. Mitchell gained recognition for his role in crafting Texas’s SB 8, an anti-abortion law that was implemented while the landmark case Roe v. Wade was still in force. This controversial law permits only private bounty hunters to claim unlimited bounties from abortion providers.

The law was written in such a manner because the Supreme Court has established that individuals who claim that a state law violates the Constitution should file a lawsuit against the state official responsible for implementing that law. Mitchell concluded that if state employees fail to enforce the law, it cannot be halted.

In the case of Whole Woman’s Health v. Jackson (2021), the Supreme Court supported this move with a 5-4 decision. Therefore, the potential absurdity of Mitchell’s main argument in favor of Trump does not necessarily mean it will not succeed. This particular Supreme Court has already demonstrated its willingness to endorse outlandish arguments put forth by the same lawyer hired by Trump, as long as those arguments align with the justices’ personal inclinations.

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

In June of last year, the justices made a decision in a case that left many conservatives feeling uneasy: Moore v Harper (2023). This case prompted one of the leading figures in the Federalist Society to caution that the Republican Party was advancing an argument that goes against the fundamental principles of the American Founding.

Moore highlighted two constitutional provisions that emphasize the authority of the “legislature” of each state in determining the method for electing federal office-holders.

In the landmark case of Davis v. Hildebrant (1916), the Supreme Court established that the term “legislature” in this context encompasses the governing body within a state that possesses the authority to create laws. Consequently, a state governor holds the power to veto a bill pertaining to elections, despite belonging to the executive branch rather than the legislative branch. Moreover, states have the ability to pass election laws through ballot initiatives or alternative forms of direct democracy, even though the majority of individuals participating in such initiatives are not elected representatives of the state legislature.

The Court has reaffirmed Davis multiple times throughout the last century. However, the independent state legislature doctrine argues that these decisions were incorrect, asserting that only a state’s elected legislative branch has the authority to determine how a state conducts federal elections.

If this theory is given serious consideration, it poses a significant threat to the democracy of the United States. According to its most stringent interpretation, state governors would be unable to veto laws that affect federal elections, state courts would be prevented from striking down these laws even if they violate the state constitution, and state constitutional provisions safeguarding voting rights would essentially become ineffective. This could potentially enable gerrymandered state legislatures to nullify the 2024 presidential election and arbitrarily allocate their state’s electoral votes to Trump.

Fortunately, there is good news as it is highly unlikely that any of these terrible scenarios will come to pass. While it is true that five of the six Republican-appointed justices had previously supported different versions of the doctrine, the Court’s ruling in Moore effectively put an end to it.

In his analysis, Moore hints at the possibility of the Supreme Court reinstating the doctrine if it determines that a state court has misinterpreted its own laws. He emphasizes that state courts should not overstep their bounds of ordinary judicial review and encroach upon the role reserved for state legislatures, as it would be deemed unconstitutional.

The meaning of this line is unclear, and it is uncertain how much a state court must deviate from the preferred interpretation of a state statute by federal justices. However, according to Trump’s brief, the case of Anderson is presented as an example of such a scenario.

Mitchell highlights a provision in Colorado law that states that every political party with a qualified candidate has the right to participate in the presidential primary election. He argues that the state Supreme Court misinterpreted this provision by excluding presidential hopefuls who are not considered “qualified candidates.”

The provision primarily focuses on determining the parties that can participate in a presidential election rather than specifying the individuals who are eligible to do so. However, the mention of “a qualified candidate” does suggest that certain candidates may not meet the necessary qualifications.

Even if Mitchell’s interpretation of this provision is accepted, Colorado law includes another provision stating that the state’s presidential primary regulations should align with federal law requirements. The 14th Amendment, including Section 3, is a federal law provision. Therefore, the state Supreme Court may have erred in referencing the incorrect state law provision to argue against allowing constitutionally ineligible candidates on the presidential primary ballot.

The Supreme Court’s ruling on whether a minor citation error warrants the use of the independent state legislature doctrine would be quite remarkable. This doctrine, which the Court has consistently rejected for over a century, has been deemed to go beyond the limits of ordinary judicial review. Even more recently, the Court dismissed it after receiving warnings from a group of retired generals and admirals about its potential threat to national security.

The US Supreme Court has a significant decision to make, but what will it achieve? If the justices decide to invalidate the Colorado ruling due to a small mistake in the interpretation of state law, it will not address the larger issue of whether Trump is ineligible under the 14th Amendment.

In essence, the Court would utilize one of its most potent tools to postpone the resolution of this case, potentially extending the timeline by a few weeks.

Trump makes the weakest version of his best argument

Trump’s brief fails to address his most compelling argument: the claim that Colorado’s courts violated his right to due process.

The brief does put forth one argument that is, at the very least, plausible. However, Mitchell only dedicates a mere two pages to his strongest argument, and even then, he presents a rather weak version of it.

The Colorado Supreme Court has determined that Trump committed an act of insurrection when he delivered a sequence of public statements that encouraged his supporters to attack the Capitol. According to the state Supreme Court, Trump’s speech on January 6th can be described as a direct call for his followers to engage in combat at the Capitol.

In his address to his supporters, Trump urged them to march towards the Capitol building, emphasizing the need to demonstrate strength and fight resolutely.

According to Mitchell, Trump cannot be sanctioned for his statements, including those similar to the ones mentioned. This argument holds weight because the First Amendment does not allow for such sanctions. The Supreme Court has established that speech inciting illegal actions is not protected by the Constitution. However, the challenge lies in defining what exactly qualifies as “incitement,” as this standard is difficult to meet.

In the landmark case of Brandenburg v. Ohio (1969), it was established that the government cannot prohibit or censor the advocacy of violence or breaking the law, unless such advocacy is specifically aimed at inciting immediate and lawless action, and is likely to result in such action. Meeting this stringent criterion has proven to be a challenging task for the government.

Trump’s speech, however, differed significantly from the Klansman’s speech in “Brandenburg”. Unlike the “Brandenburg” speech, which was held at a remote farm in Ohio, Trump delivered his speech directly to a passionate crowd of supporters who had gathered at the Capitol, ready to march.

Following Trump’s speech, a mob of his supporters, many of whom had just heard his words, stormed the Capitol in an effort to overturn the election that Trump had recently been defeated in.

In his analysis of the “Brandenburg” case, Mitchell provides a concise yet challenging interpretation. It seems that he asserts that Trump’s speech was not “likely” to incite violence. Mitchell correctly highlights that the First Amendment does not protect speech that is both “intended” and “likely” to incite imminent violence. Moreover, he emphasizes that a speech cannot lose its First Amendment protection solely based on the speaker’s intent. Consequently, Mitchell’s argument implies that he believes Trump’s statements were not likely to lead to violent or unlawful actions.

The argument suggesting that Trump’s January 6 speech should not be taken seriously is quite challenging to accept. The Colorado Supreme Court clarifies that this particular speech is just one among several instances where Trump appeared to endorse violence or express support for his followers’ violent actions carried out on his behalf.

Georgia election official Gabriel Sterling, for instance, publicly cautioned President Trump about the potential consequences of his rhetoric, urging him to refrain from inspiring violence. However, in response, Trump chose to retweet a video of Sterling’s press conference, effectively repeating the very rhetoric that Sterling had warned could incite violence. Likewise, following a pro-Trump rally on November 14, 2020, that escalated into violence, Trump justified the actions of his supporters as acts of self-defense against what he referred to as “ANTIFA SCUM.”

One of the most incriminating pieces of evidence against Trump is his tweet one hour after learning about his supporters’ attack on the Capitol. In the tweet, the former president accuses Mike Pence of lacking the courage to protect our country and Constitution. This suggests that Trump not only encouraged the insurrectionists during the January 6 events but also hinted that they should target Pence.

Although the standard for incitement is set high by the Brandenburg case, the arguments presented by Trump’s lawyers fail to provide any justification for dismissing this case based on First Amendment grounds. It is important to note that the majority of statements advocating violence do not typically lead to immediate violence. However, in this case, Trump explicitly instructed a mob of his supporters to target a specific individual while they were actively involved in criminal and violent activities.

The case of Trump v. Anderson is undoubtedly perplexing. It’s difficult to envision the Supreme Court actually disqualifying Trump from the ballot. However, Trump and his legal team have provided the justices with scant evidence to support a ruling in his favor. Mitchell’s arguments range from the trivial (claiming the president is not considered an “officer of the United States”) to unconvincing (asserting that Trump’s numerous statements inciting violence were unlikely to lead to actual violence) to downright risky (advocating for the controversial independent state legislature doctrine).

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