{"id":31582,"date":"2024-02-08T13:07:49","date_gmt":"2024-02-08T21:07:49","guid":{"rendered":"https:\/\/occupysf.net\/?p=31582"},"modified":"2024-02-08T13:07:49","modified_gmt":"2024-02-08T21:07:49","slug":"trumps-legal-arguments-for-staying-on-the-ballot-are-embarrassingly-weak","status":"publish","type":"post","link":"https:\/\/occupysf.net\/index.php\/2024\/02\/08\/trumps-legal-arguments-for-staying-on-the-ballot-are-embarrassingly-weak\/","title":{"rendered":"Trump\u2019s Legal Arguments for Staying on the Ballot Are Embarrassingly Weak"},"content":{"rendered":"\n

Ian Millhiser\/Vox<\/strong><\/p>\n\n\n\n

\"Trump\u2019sThen-President Donald Trump greets two of his appointees to the Supreme Court, Neil Gorsuch, left, and Brett Kavanaugh. (photo: Bloomberg)<\/strong><\/p>\n\n\n\n

07 february 24<\/strong> (RSN.org)<\/p>\n\n\n\n

\n

It\u2019s hard to imagine this Supreme Court removing Trump from the ballot. But his lawyers gave the justices very little to work with.<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n

Well, the Supreme Court fight over our insurrectionist former president is finally upon us.<\/p>\n\n\n\n

On Thursday, the Court will hear oral arguments in Trump v. Anderson<\/em><\/a>, the case asking whether Colorado\u2019s 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 \u2014 because a constitutional ruling by the Supreme Court binds every judge in the country.<\/p>\n\n\n\n

Section 3 of the 14th Amendment provides that no person who previously held high office may serve in such office again if they \u201chave engaged in insurrection or rebellion<\/a>\u201d against the Constitution. The Colorado Supreme Court ruled that Trump violated this clause when he incited his followers to attack the US Capitol<\/a>, in a failed attempt to overturn the 2020 election.<\/p>\n\n\n\n

Anyone who thinks Anderson<\/em> 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<\/a>. The Court has a 6-3 Republican supermajority, and half of the Republican justices were appointed by Trump.<\/p>\n\n\n\n

That said, Trump\u2019s lawyers, in their brief to the justices<\/a>, gave his fellow partisans on the Court little to work with. As election law scholar Rick Hasen writes, \u201cthe arguments that Trump has advanced in his most recent brief are weaker and more hedged than I would have expected<\/a>,\u201d and \u201cit\u2019s hard to know exactly where the court goes from here,\u201d given this meager performance by the former president\u2019s attorneys.<\/p>\n\n\n\n

So, if you are a gambler, you\u2019d 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.<\/p>\n\n\n\n

Trump\u2019s legal arguments, briefly summarized<\/strong><\/p>\n\n\n\n

Trump\u2019s brief leaves what is probably his strongest legal argument on the table.<\/p>\n\n\n\n

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<\/a>. But Trump\u2019s 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.<\/p>\n\n\n\n

One possible explanation for this oversight is a decision holding that Colorado committed a process violation wouldn\u2019t 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.<\/p>\n\n\n\n

But Trump\u2019s brief leans into other arguments that would merely delay a reckoning over Trump\u2019s eligibility to be president. Specifically, Trump accuses Colorado\u2019s highest court of violating the state\u2019s laws when it ruled against him. This is a weak argument because each state\u2019s highest court, and not the US Supreme Court, is generally understood to have the final word on all questions of state law<\/a>.<\/p>\n\n\n\n

In its last term, however, the Court considered a many-times-rejected legal argument, known as the \u201cindependent state legislature doctrine\u201d (ISLD), that would allow the justices to bypass this rule. But the Court almost entirely neutralized the ISLD<\/a> 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 \u201cflout[s] core tenets of the American Founding<\/a>.\u201d<\/p>\n\n\n\n

Trump, in other words, is asking the Court to open a Pandora\u2019s box that it slammed shut after hearing widespread alarm from across the legal profession \u2014 including some of the conservative movement\u2019s most dedicated activists.<\/p>\n\n\n\n

And then there\u2019s Trump\u2019s primary argument for staying on the ballot. The 14th Amendment uses the term \u201cofficer of the United States<\/a>\u201d 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 office-holder in the United States and the commander-in-chief of its military, does not qualify as an officer of the United States<\/a>.<\/p>\n\n\n\n

In support of this argument, Trump\u2019s legal team points to a handful of constitutional provisions \u2014 all drafted nearly a century before the 14th Amendment was ratified \u2014 that seem to exclude the president from the term \u201cofficers of the United States.\u201d One provision, for example, says that the president \u201cshall Commission all the Officers of the United States.\u201d Read in isolation, this provision does suggest that the president is not an officer.<\/p>\n\n\n\n

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, \u201cthe Constitution refers to the Presidency as an \u2018Office\u2019 twenty-five times<\/a>.\u201d<\/p>\n\n\n\n

The plaintiffs challenging Trump\u2019s eligibility point to myriad evidence<\/a> indicating that, by the time the 14th Amendment was ratified in 1868, the term \u201cofficer of the United States\u201d was understood to include the president. This includes an 1823 opinion<\/a> by Chief Justice John Marshall, which states that if an office-holder is \u201cemployed on the part of the United States, he is an officer of the United States.\u201d<\/p>\n\n\n\n

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 \u201cofficers of the United States\u201d includes any \u201cperson 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.\u201d<\/p>\n\n\n\n

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\u2019s hard to imagine any judge signing onto Trump\u2019s argument in a case that didn\u2019t involve the same brain-scramblingly high political stakes as Trump v. Anderson.<\/em> Trump\u2019s 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<\/a>.<\/p>\n\n\n\n

Indeed, their argument is even more absurd than that. As the Anderson<\/em> plaintiffs note in their brief, Trump is proposing a \u201cTrump-only exception<\/a>\u201d 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.<\/p>\n\n\n\n

It\u2019s clear that Trump\u2019s lawyers think this is their strongest argument. Trump\u2019s brief spends about 26 pages<\/a> 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.<\/p>\n\n\n\n

Trump\u2019s lead attorney is Jonathan Mitchell<\/a>, a lawyer who specializes in trying to convince judges to give legal texts the same sort of malicious construction that \u201cThe Monkey\u2019s Paw\u201d gives to wishes<\/a>. Mitchell is best known as the mastermind behind Texas\u2019s SB 8<\/a>, an anti-abortion<\/a> law enacted while Roe v. Wade<\/em><\/a> was still in effect, which allows private bounty hunters \u2014 and only private bounty hunters<\/a> \u2014 to collect limitless bounties from abortion providers.<\/p>\n\n\n\n

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<\/a>, and Mitchell reasoned that, if state employees did not enforce the law, it could not be blocked.<\/p>\n\n\n\n

The Supreme Court backed this play in its 5-4 decision in Whole Woman\u2019s Health v. Jackson<\/em><\/a> (2021). So the fact that Mitchell\u2019s primary argument in support of Trump would lead to an absurd result is no guarantee that it won\u2019t 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\u2019 personal preferences.<\/p>\n\n\n\n

Trump asks the justices to revive the most dangerous legal argument the Court has heard recently<\/strong><\/p>\n\n\n\n

Last June, the justices decided a case that filled even many sober-minded conservatives with a sense of dread: Moore v Harper<\/em><\/a> (2023), the case that led one of the Federalist Society\u2019s top leaders to warn that the Republican Party was pushing an argument that \u201cflout[s] core tenets of the American Founding<\/a>.\u201d<\/p>\n\n\n\n

Moore <\/em>turned on a pair of constitutional provisions that say the method each state uses to elect federal office-holders shall be determined by the \u201clegislature\u201d of that state.<\/p>\n\n\n\n

The Supreme Court first held in Davis v. Hildebrant<\/em><\/a> (1916) that the word \u201clegislature,\u201d 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\u2019s 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\u2019s elected legislature.<\/p>\n\n\n\n

Davis<\/em> has been reaffirmed by the Court many times over the course of the last century<\/a>. Nevertheless, the independent state legislature doctrine claims that these decisions were wrong, and only a state\u2019s elected legislative branch may decide how a state conducts federal elections.<\/p>\n\n\n\n

If taken seriously, this theory is an existential threat to US democracy<\/a>. 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<\/a> effectively cease to function. It could have allowed gerrymandered state legislatures to cancel the 2024 presidential election<\/a> and simply award their state\u2019s electoral votes to Trump.<\/p>\n\n\n\n

The good news is that none of this parade of horribles is likely to happen. Though five of the Court\u2019s six Republican appointees had, at some point in the past, endorsed various versions of the doctrine, the Court\u2019s opinion in Moore<\/em> largely shut it down<\/a>.<\/p>\n\n\n\n

That said, Moore<\/em> included an ominous line suggesting the Supreme Court could revive the doctrine if five justices think that a state court read that state\u2019s own law very badly. \u201cState courts,\u201d according to Moore<\/em>, \u201cmay not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures.\u201d<\/p>\n\n\n\n

It\u2019s not at all clear what this line means or just how badly a state court must depart from the federal justices\u2019 preferred reading of a state statute. But Trump\u2019s brief claims that Anderson<\/em> is such a case.<\/p>\n\n\n\n

Specifically, Mitchell points to a provision of Colorado law that says \u201ceach political party that has a qualified candidate<\/a> entitled to participate in the presidential primary election pursuant to this section is entitled to participate in the Colorado presidential primary election,\u201d and he accuses the state Supreme Court of misreading this provision to exclude presidential aspirants who aren\u2019t \u201cqualified candidates.\u201d<\/p>\n\n\n\n

It\u2019s 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 \u2014 although the reference to \u201ca qualified candidate\u201d does imply that some candidates do not qualify.<\/p>\n\n\n\n

But even if you accept Mitchell\u2019s reading of this provision, a different provision of Colorado law says that the state\u2019s law governing presidential primaries should \u201cconform to the requirements of federal law<\/a>\u201d \u2014 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.<\/p>\n\n\n\n

It would be extraordinary if the Supreme Court ruled that this alleged, penny-ante citation error so \u201cexceed[s] the bounds of ordinary judicial review\u201d as to justify invoking the independent state legislature doctrine \u2014 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<\/a> warned the justices that it threatens national security<\/a>.<\/p>\n\n\n\n

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\u2019s construction of state law, that would do nothing to resolve the broader question of whether Trump is disqualified under the 14th Amendment.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

Trump makes the weakest version of his best argument<\/strong><\/p>\n\n\n\n

As noted above, Trump\u2019s brief does not even raise his strongest argument: the argument that Colorado\u2019s courts failed to provide him with due process<\/a>.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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\u2019s words, Trump \u201cliterally exhorted his supporters to fight at the Capitol<\/a>.\u201d<\/p>\n\n\n\n

Among other things, Trump told his supporters that \u201cwe\u2019re going to walk down to the Capitol\u201d where they \u201chave to show strength\u201d and \u201cfight like hell.\u201d<\/p>\n\n\n\n

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\u2019s 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 \u201cincitement\u201d is very hard to clear.<\/p>\n\n\n\n

The seminal case is Brandenburg v. Ohio<\/em><\/a> (1969), which held that the government may not \u201cforbid 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.\u201d And it is notoriously difficult for the government to meet this test.<\/p>\n\n\n\n

Brandenburg<\/em> involved a speech at a Ku Klux Klan rally, attended by \u201c12 hooded figures, some of whom carried firearms,\u201d where a speaker said that \u201cif our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it\u2019s possible that there might have to be some revengeance taken.\u201d 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 \u201cmere advocacy\u201d of violence, but only \u201cimminent lawless action.\u201d<\/p>\n\n\n\n

Trump\u2019s speech, however, was quite different from the Klansman\u2019s speech in Brandenburg<\/em>. For starters, while the Brandenburg<\/em> speech took place at a farm in Ohio \u2014 far away from the president, Congress, or the Supreme Court \u2014 Trump delivered his speech to a crowd of angry supporters as they gathered to march on the Capitol itself.<\/p>\n\n\n\n

There were also strong indications that many members of this crowd understood Trump\u2019s speech to be a direct call for an immediate insurrection. According to the Colorado Supreme Court, \u201cafter President Trump instructed his supporters to march to the Capitol, members of the crowd shouted, \u2018[S]torm the capitol!\u2019; \u2018[I]nvade the Capitol Building!\u2019; and \u2018[T]ake the Capitol!\u2019<\/a>\u201d<\/p>\n\n\n\n

And, of course, Trump\u2019s speech was, in fact, followed by a mob of his supporters \u2014 many of whom had just listened to his speech \u2014 invading the Capitol in an attempt to overthrow the election that Trump had just lost.<\/p>\n\n\n\n

Mitchell\u2019s discussion of Brandenburg<\/em> is brief and difficult to parse, but he appears to argue that Trump\u2019s speech was not \u201clikely\u201d to result in violence<\/a>. As Mitchell correctly notes, Trump\u2019s speech is unprotected by the First Amendment only if it was \u201c\u2018intended\u2019 and \u2018likely\u2019\u201d to incite imminent violence,\u201d and he notes that a speech cannot lose First Amendment protections solely based on \u201cthe intent of the speaker.\u201d So, read together, these two claims suggest that Mitchell thinks Trump\u2019s statements were not likely to result in violent or lawless action.<\/p>\n\n\n\n

But this argument is difficult to take seriously. As the Colorado Supreme Court explains, Trump\u2019s 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.<\/p>\n\n\n\n

Georgia election official Gabriel Sterling, for example, publicly warned Trump \u201cto \u2018stop inspiring people to commit potential acts of violence\u2019 or \u2018[s]omeone\u2019s going to get killed,\u2019\u201d but Trump responded by \u201cretweeting a video of Sterling\u2019s press conference with a message repeating the very rhetoric that Sterling warned would result in violence.\u201d Similarly, after a November 14, 2020, pro-Trump rally turned violent, Trump responded by justifying this violence \u201cas self-defense against \u2018ANTIFA SCUM.\u2019\u201d<\/p>\n\n\n\n

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 \u201cMike Pence didn\u2019t have the courage<\/a> to do what should have been done to protect our Country and our Constitution.\u201d So, at the very moment that the January 6 insurrection was underway, Trump didn\u2019t just egg on the insurrectionists, he suggested that they target Pence<\/a>.<\/p>\n\n\n\n

While Brandenburg<\/em> sets a high standard for incitement, Trump\u2019s 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.<\/p>\n\n\n\n

This is the equivalent of standing on the sidelines of a fistfight and yelling at one of the combatants to \u201cbeat him harder\u201d while the fight is ongoing \u2014 and the law generally permits someone who actively cheers on an ongoing fight<\/a> to face legal consequences.<\/p>\n\n\n\n

Trump v. Anderson<\/em> is a frustrating case. It\u2019s 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\u2019s arguments range from silly (the president is not an \u201cofficer of the United States\u201d) to unpersuasive (Trump\u2019s many statements encouraging violence were not likely to result in violence) to outright dangerous (the entire independent state legislature doctrine).<\/p>\n\n\n\n

If that\u2019s the best that Trump\u2019s supporters can come up with, it will be very difficult for the justices to show their partisan loyalty without embarrassing themselves.<\/p>\n","protected":false},"excerpt":{"rendered":"

Ian Millhiser\/Vox Then-President Donald Trump greets two of his appointees to the Supreme Court, Neil Gorsuch, left, and Brett Kavanaugh. (photo: Bloomberg) 07 february 24 (RSN.org) It\u2019s hard to imagine this Supreme Court removing Trump from the ballot. But his lawyers gave the justices very little to work with. Well,… Continue reading → <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/31582"}],"collection":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/comments?post=31582"}],"version-history":[{"count":1,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/31582\/revisions"}],"predecessor-version":[{"id":31583,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/31582\/revisions\/31583"}],"wp:attachment":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/media?parent=31582"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/categories?post=31582"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/tags?post=31582"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}