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An observer of the Supreme Court oral argument on the 45th president’s getting kicked off the Colorado primary ballot might be forgiven for asking, “What have you done with Donald Trump’s legal team?” The argument offered by the former president’s attorney was quite different than the posturing of his lawyers in previous cases—and even in earlier proceedings in this one.
As an illustration, consider that the word “bedlam” appeared nowhere in the argument posed by Jonathan Mitchell, Trump’s lawyer. Mitchell is the principal author of Texas’s S.B. 8—the 2021 “heartbeat bill” that turned a flatly unconstitutional (at the time of passage) ban on abortion after six weeks into a bounty hunt where neighbors, rather than state officials, handle the duty of snitching on obstetricians and women seeking to end their pregnancies by using the courts to bankrupt them.
Remember that S.B. 8, even before the Court overturned Roe v. Wade and Planned Parenthood v. Casey, survived judicial review. And let us acknowledge that Mitchell is a superb strategist and advocate. Yesterday, the former Texas Solicitor General played the Court Whisperer, assuring the nine justices that the case need involve only the narrowest verbal constructions of Section 3 of the Fourteenth Amendment. The presidency is not an “office of the United States” under the Constitution; Trump’s oath of office did not commit him to “support” the Constitution, only to “preserve, protect and defend” it; the Fourteenth Amendment doesn’t say he can’t “run” only that he can’t “hold” the office of President.
One must admire these soporific suggestions, which plainly found willing ears on a Court hoping for an off-ramp that will not cause legal and probably physical turmoil, whichever way it comes out. First, Mitchell argued, Section 3, which covers “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,” conspicuously omits the term “President of the United States.” He more or less conceded the historical evidence about the Framers of the Amendment. Instead, the 47-year-old veteran litigator making his sixth argument before the Court fell back on bare text, returning after time to the use of the word “office” in other parts of the Constitution to mean “appointed official” rather than elected one. The Amendment takes in elected officials (“Senator or Representative”)—but that sweeping language didn’t suggest that Section 3 casts a wide net, Mitchell said; instead, it makes “President’s” omission more probative of this abstruse point.
Second, Mitchell argued that no one can be disqualified from any federal office until and unless Congress has passed a specific statute requiring disqualification. Trump’s lawyers rely on Griffin’s Case, an obscure 1869 case from Virginia, in which a federal court of appeals decided that the disqualification clause required congressional enforcement. There are some problems with the precedent involving Caesar Griffin, a Black defendant convicted after a jury found him guilty of assault with intent to kill, who argued that the Virginia judge who heard the case had been a member of the Virginia legislature under the Confederacy and thus was not a judge at all. The appellate court rejected this argument, saying that the disqualification clause could not be applied to sitting state officials without a federal enforcement statute.
One can pick bones with the appellate court’s argument: first, the judge was Chief Justice Salmon P. Chase sitting, as required by law, only as a “circuit judge.” So, the case is not binding precedent on the Roberts Court; second, a contrary result would have meant freeing a defendant found guilty by a properly constituted jury; and third, removing a sitting judge is in many ways different from barring an aspirant from public office. The latter does not involve voiding official actions.
But the point of the paragraph above, useful as an over-the-counter sleep aid, is that it offers the justices another quiet off-ramp. There is no statute in force today that bars insurrectionists from office—indeed, there is only a criminal statute forbidding “insurrection”—and so the Section 3 question doesn’t arise. Besides, the Griffin argument is precedent—law, not politics—and offers the Court a chance to emerge from this case with some shreds of honor intact.
Next, Mitchell, a former law clerk for the late Justice Antonin Scalia, said that by disqualifying Trump from its primary ballot, Colorado had added a new qualification for federal office, which previous cases say a state can’t do. That’s not because Section 3 itself would be a new qualification—it’s right there in the Constitution—but because Section 3 says that no insurrectionist may “hold” office, not that they can’t “run for” office. The only way Section 3 could be enforced against Trump would thus be if he wins and voters then challenge his eligibility. Mitchell argued that what the Colorado Supreme Court did was more akin to previous cases in which the Court held that states could not exclude a candidate for the House from the ballot, for example, because they were not already an “inhabitant” of the state. The Constitution imposes the inhabitant requirement only “when elected,” and the candidate might move to the state once nominated. It was time enough for a challenge if they did not.
Mitchell offered these arguments with intellectual modesty, acknowledging that the other side had counter-arguments offered in good faith. This was quite unlike the former president’s other advocates, such as Rudy Giuliani or Alina Habba—or D. John Sauer, once Josh Hawley’s successor as Missouri’s solicitor general, who told the D.C. Circuit that a president could order political rivals assassinated and face no consequence if not impeached. In some ways, the legal debate forced Mitchell back: The Section Three argument, when legal scholars first proposed it, was derided as a fringe theory. Scholarship added heft to the idea until it finally forced Trump off the high ground and left his lawyer with no card to play but naked text.
The practicality of disqualification appeared only at the 60-minute mark when Chief Justice John Roberts asked Jason Murray, the lawyer representing Colorado voters seeking to exclude Trump from the ballot:
Counsel, what do you do with the–what would seem to me to be plain consequences of your position? If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side. And some of those will succeed. . . .I would expect that, you know, a goodly number of states will say, whoever the Democratic candidate is, you’re off the ballot. And others for the Republican candidate, you’re off the ballot. It’ll come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.
Murray, a 38-year-old Denver lawyer making his first argument before the court, immediately claimed the high ground that the Trump team’s textual arguments had silently conceded: “By engaging in an insurrection against the Constitution, President Trump disqualified himself from public office.”
The argument that Trump could not be prevented from becoming president unless he was elected and Congress, not any states, disqualified him, Murray insisted, meant that the issue must be adjudicated during the roughly three months between Election Day and Inauguration Day. That interregnum, he warned, could lead to a scenario much like January 6 on steroids, in which members of Congress refuse to count electoral votes. “That is kind of a disenfranchisement and constitutional crisis in the making.” That grim possibility hung over the rest of the argument.
It was apparent that the justices on the “liberal” side of the Court were finding the voters’ arguments for disqualification difficult. They probably wish the cup of disqualification could be taken from the Court’s lips. Justice Ketanji Brown Jackson, who favors a broad interpretation of the Fourteenth Amendment, almost scolded Mitchell for not arguing that the Framers really did intend to exclude the presidency from Section Three’s coverage: “I just am surprised that you would–given the text of the provision and the historical context that seems to demonstrate that their concern or their focus was not about the presidency, I just don’t understand why you’re giving that argument up.” Justice Elena Kagan warned Murray, a former clerk of hers at the Supreme Court and also of Justice Neil Gorsuch back when Coloradan was on the 10th Circuit, that “I think that the question that you have to confront is why a single state should get to decide who gets to be President.” Justice Sonia Sotomayor was the most aggressive questioner of the Trump side—but it would be unwise to predict that even she will vote against the former president.
Certainly, no conservative justice hinted they were considering jumping ship from the S.S. Trump. Indeed, much of Murray’s time was occupied with Justice Samuel Alito’s patented treatment of disfavored advocates—staccato demands that he respond to increasingly absurd hypotheticals. What if “it’s three days before the election based on the fact that the polls in that state look bad,” and the legislature or court disqualifies the candidate who might otherwise win? Alito asked if a president engaged in insurrection while in office, “Would it be lawful for military commanders and other officers to disobey orders of the–of the–the president in question?”
And finally, and most archly, the George W. Bush-nominated justice barked: “Suppose there’s a country that proclaims again and again and again that the United States is its biggest enemy and suppose that the president of the United States for diplomatic reasons think that it’s in the best interests of the United States to provide funds or release funds so that they can be used by that–by that country. Could a state determine that that person has given aid and comfort to the enemy and, therefore, keep that person off the ballot?”
A thousand hours of Fox News programming lay behind that Alito strawman, with its more or less overt suggestion that the nuclear agreement forged with Iran by President Barack Obama and American allies (later rescinded by Trump) to transfer Iranian funds that had been blocked under sanctions back to the Tehran regime. Is it my imagination that I saw, hovering behind this question, another unspoken promise: Surely, we can find some Biden misstep as an excuse to keep him off some ballots?
The third argument came from Shannon Stevenson, who became solicitor general of Colorado last year. She spent most of her few minutes discussing the effect of the Colorado court finding Trump had engaged in insurrection. What “standard of review” should the U.S. Supreme Court employ to review those facts? Would they be binding on the Roberts Court? What if another state court made different findings of fact (say that Trump didn’t engage in insurrection)? Could voters in another state submit a state court’s findings and claim they also bound that court? At this point, Alito invoked the question of “non-mutual collateral estoppel.” (Don’t ask, non-lawyers. Just know that virtually every law professor’s heart sank as heavily at that point as yours.) Justices and advocates both seemed to conclude that it was time to call a halt to this argument well after the two-hour mark. As it ended, it is apparent that the Colorado voters, who need five votes to exclude Trump from the primary ballot, are currently leading with exactly none. You don’t need Steve Kornacki to project this puppy.
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