Trump Backers Dodge Jan. 6 in Supreme Court Ballot Case (1) – Bloomberg Law
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By Kimberly Strawbridge Robinson
Few outside briefs supporting Donald Trump’s US Supreme Court appeal to stay on Colorado’s Republican primary ballot defend his actions on Jan. 6, which voters suing him say amounted to insurrection and disqualifies him from the presidency.
More than two dozen amicus filings supporting the Republican front-runner submitted ahead of Thursday’s argument in Trump v. Anderson instead focus largely on technical arguments about how and when Section 3 of the 14th Amendment bars someone who engaged in insurrection from holding future office.
Josh Blackman, a South Texas College of Law professor who filed a brief supporting Trump, says the case is “all about insurrection but no one is talking about insurrection.”
Trump’s own brief starts with the argument that the Constitution’s insurrection clause doesn’t apply to former presidents. Others filed by conservative groups, former officials, and law professors in support of Trump say congressional action is required to bar someone from office, or that the question is too political for state courts to implement.
The case, which involves mostly unresolved issues surrounding the Civil War-era insurrection clause, drops the Supreme Court into the middle of a dispute that could swing the 2024 election. Separate challenges to Trump’s eligibility to appear on the ballot are pending in 11 other states.
The justices scheduled a special argument session to consider a Dec. 19 Colorado Supreme Court split decision that said a Jan. 6, 2021, Trump speech on the Ellipse not only incited a crowd of his supporters who breached the Capitol where lawmakers were certifying the 2020 election, but he also continued to urge them to engage in insurrection.
In finding Trump ineligible in the case lodged by the Colorado voters, the court also dismissed arguments unrelated to his actions on Jan. 6. Those are the primary focus of filings on the side of the former president. They’re also the focus of a relatively large number of amicus filings in support of neither party, which includes mostly law professors and progressive groups.
Court watchers say the move to steer clear of insurrection makes sense.
No one wants to relive Jan. 6, Blackman said. “We all lived it. And I don’t think the court wants to relive it, either.”
Notre Dame law professor Derek Muller said on Bloomberg Law’s “Cases and Controversies” podcast that the question of whether Jan. 6 was an “insurrection” for purposes of the Section 3 involves “a lot of deep in the weeds factual questions.”
Muller’s brief didn’t support Trump or the Colorado voters.
To prevail at the Supreme Court, Trump need not convince the justices that he didn’t engage in an insurrection. Instead, he can win on any one of a handful of arguments unrelated to that question.
To decide insurrection, the justices would have to sort what Trump was “rage tweeting” in the days leading up to the Capitol attack, his state of mind in making his remarks to his supporters, and whether his use of terms like “fight” were intended to incite violence, Muller said.
The court is “going to want to deal with this on a question of law as much as possible and stay out of those hot-button political factual issues,” he said. Those filing amicus briefs on his side “realize it’s not as strong an argument for the court to consider.”
Additionally, Section 3 hasn’t really been litigated in more than a century, said McDermott Will & Emery partner and Supreme Court advocate Michael Kimberly. And there are a lot of open questions about how the provision should work in practice.
“This is sort of like catnip for legal scholars and academics,” said Kimberly, who filed a brief on behalf of three ideologically diverse election law experts. They include left-of-center law professors Rick Hasen of UCLA and Ohio State’s Edward Foley, as well as Republican Party lawyer Benjamin Ginsberg.
The novelty of the legal issues plus the reality that “the factual question is really a dangerous one” probably explains why we don’t see many full-throated defenses of Trump’s actions on that day, Kimberly said.
Not all of Trump’s amicus supporters shied from the argument tied to Trump’s actions on Jan. 6.
“We really went into it like no other brief,” said First Amendment and election law lawyer James Bopp, Jr.
In a meeting to coordinate potential amicus support on behalf of the former president—a common practice in Supreme Court cases—it became clear that Bopp’s expertise was perfect for the moment.
Bopp successfully defended Rep. Marjorie Taylor Greene (R-Ga.) from efforts to disqualify her from running for Congress over Jan. 6 and Rep. Madison Cawthorn (R-N.C.) in a similar case.
“I’ve been there, done that,” Bopp said.
Bopp said in his brief that Trump “asked supporters to walk—not march, not storm, not overwhelm—to the Capitol in order to cheer on members of Congress who in his view, were doing the right thing by questioning the certification of the Electoral Ballots.”
He added that nothing “in the plain language of this portion of the Ellipse Speech could be viewed as directing or inciting imminent lawless action, when seen in context.”
Still, Bopp agreed that most of the briefs in support of Trump focused on “more technical or procedural issues.”
Trump’s own brief, filed by conservative lawyer Jonathan Mitchell who was behind Texas’ abortion law, SB 8, says a president isn’t an officer of the US under the Constitution.
His lawyers also argue that Section 3 isn’t “self-executing,” meaning that Congress must first pass legislation to implement the provision.
Both argument are made many times by those on Trump’s side.
On insurrection, Trump’s brief argues that Section 3’s requirement that the public official “engage” in an insurrection can’t be met by his Jan. 6 speech and “mere failure to act.”
Others say it would be dangerous to let state courts or politicians determine what counts as insurrection.
But “I’ve really not seen a brief that actually defends January 6 on the merits,” Blackman said.
The case is Trump v. Anderson, U.S., No. 23-719, argued 2/8/24.
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