Overview of Amicus Briefs Supporting Petitioner in Trump v. Griswold

About 30 amicus briefs were filed to reverse the Colorado Supreme Court’s ruling that disqualified President Trump from the ballot.

[This post is co-authored with Professor Seth Barrett Tillman]

Trump v. Anderson is scheduled to be argued on February 8, 2024. The deadline for topside briefs was yesterday, January 18, 2024. President Trump filed his merits brief. And more than forty amicus briefs were filed. Most of them were filed in support of Petitioner, but a handful were filed in support of neither party. In this post, we will provide an overview of about thirty of the amicus briefs. And we will do so in a fairly expeditious fashion: by reproducing the tables of contents. A good tip for law students: skimming the TOC should provide a precise overview of how a brief will proceed. Of these thirty-odd briefs, about a dozen expressly argue that the President is not an "Officer of the United States." We list the amicus brief in the order in which they were filed.

President Trump's Merits Brief

I. The president is not an "officer of the United States"
II. President Trump did not "engage in insurrection"
III. Section 3 should be enforced only through Congress's chosen methods of enforcement
IV. Section 3 cannot be used to deny President Trump access to the ballot
V. The Colorado Supreme Court violated the Electors Clause and the Colorado Election Code

Filed on 1/9/24

Brief amicus curiae of Professor Seth Barrett Tillman

I. Plaintiffs' Requested Relief is Barred by Griffin's Case (1869)
A. Griffin's Case is persuasive authority that settled the meaning of Section 3
B. Decisions from Louisiana and North Carolina are consistent with Griffin's Case
C. The Colorado Supreme Court engaged in improper speculation about Chief Justice Chase's motives
D. Griffin's Case is consistent with the deeply rooted sword-shield dichotomy in federal courts' jurisprudence
II. In 1788, 1868, and today, "Officer of the United States" in the Constitution extends exclusively to appointed positions and not to elected positions
A. In the Constitution of 1788, the President did not hold an "Office … under the United States"
B. In the Constitution of 1788, the President was not an "Officer of the United States"
C. In 1868, the President was not an "Officer of the United States" in the Constitution
D. There is a tradition of authority from the Judicial and Executive Branches demonstrating that the President is not an "Officer of the United States"

Filed on 1/11/24

Brief amicus curiae of Landmark Legal Foundation

I. THE COLORADO SUPREME COURT'S BROAD INTERPRETATION OF SECTION THREE WOULD ENABLE PARTISAN OFFICIALS TO DISQUALIFY POLITICAL OPPONENTS BY UNILATERALLY DECLARING THEM INSURRECTIONISTS
II. THERE IS NO PRIVATE CAUSE OF ACTION TO ENFORCE THE DISQUALIFICATION CLAUSE
A. The text of the Fourteenth Amendment suggests Section Three is not self-executing
B. History, case law, and congressional action all demonstrate that Section Three is not self-executing
C. Construing Section Three as self-executing also contradicts the intent and purpose of the Fourteenth Amendment as a tool to increase federal power
D. There is no conflict between the relief requested by Donald J. Trump and Hassan v. Colorado
III. THEN-PRESIDENT TRUMP DID NOT INCITE JANUARY 6TH PROTESTORS TO ENGAGE IN INSURRECTION

Brief amicus curiae of Vivek Ramaswamy

I. President Trump's opponents have resorted to antidemocratic methods because they doubt that they can beat him in a fair election.
A. In judicial silence, President Trump's political opponents have sensed opportunity.
B. The decision below incentivizes inconsistent partisan determination of Section 3 ballot access decisions.
C. Adopting the Colorado Supreme Court's theory will require this Court to adjudicate political questions
II. The President is not an "officer of the United States" within the meaning of the Fourteenth Amendment
A. Neither the drafters of the Fourteenth Amendment nor this Court have addressed whether the Disqualification Provision of Section 3 applies to former Presidents.
B. The Constitution's plain text demonstrates that the President is not an "officer."
C. Traditional canons of construction support the plain reading of Section 3's text.
D. Structural considerations further support the President's unique constitutional status

Filed on 1/15/24

Amicus brief of David E. Weisberg

The presidency and vice presidency were deliberately omitted from the list of barred offices because in 1868 there was no danger that voters with unreconstructed rebel sentiments could pick winners in a nation-wide election, while there clearly was such a danger in elections confined to States that had previously seceded
A. In the national electorate, voters with Unionist sentiments far outnumbered those with Confederate sentiments, and it would therefore be impossible for the latter to pick winners in an election for president and vice president
B. As an additional safeguard, Section 3 explicitly barred any disqualified person from serving as "elector of President or Vice-President"

Filed on 1/16/24

Amicus brief of Professor Kurt T. Lash

I. Section Three's text is ambiguous about inclusion of the President.
A. Around 1868, "civil officer under the United States" was not understood to include apex political positions.
B. Rules of construction suggest Section Three excludes the apex office of the President.
II. The ratifying debates did not resolve the inherent ambiguity of Section Three.
III. Reading Section Three as excluding the office of the President is textually and historically reasonable.
A. Though prior drafts of Section 3 enumerated the office of the President, the final draft omitted this language.
B. The Joint Committee on Reconstruction ignored the office of the President and instead focused on Congress and the electoral college.
C. The final draft of Section Three also focused on Congress and the electoral college, but expanded the text to include lower federal and state offices.
D. Section Three secured a sufficiently trustworthy electoral college.

Amicus brief of Public Interest Legal Foundation and Hans von Spakovsky

I. The Continued Legal Viability of Section 3 Is Suspect
II. Section 3 Does Not Apply to Former President Donald Trump.
III. No State Court Has the Constitutional Authority to Overrule the Judgment of the Senate that Acquitted President Trump of "Incitement of Insurrection."
IV. Section 3 Is Not Self-Executing and No Court Has the Authority to Enforce Section 3 Because Congress Has Not Passed a Federal Law Providing for Enforcement.
V. States Cannot Add Qualification Beyond What the Constitution Sets Forth.

Filed on 1/17/24

Amicus brief of 102 Colorado Registered Electors

I. THE COLORADO ELECTION CODE DOES NOT VEST COLORADO COURTS WITH JURISDICTION TO ADJUDICATE QUESTIONS RELATING TO SECTION 3 OF THE FOURTEENTH AMENDMENT
II. THE PLAIN TEXT OF SECTION 3 OF THE FOURTEENTH AMENDMENT DOES NOT APPLY TO THE PRESIDENT
A. The President is not an "Officer of the United States"
B. The Colorado Supreme Court's definition of an "Officer of the United States" contradicts the Framer's and this Court's understanding of such phrase
III. CONGRESS REMOVED ANY ELECTORAL DISABILITY VIA THE 1872 AND 1898 AMNESTY ACTS

Amicus brief of Devin Watkins and Charles Watkins

I. The President Is Not an "Officer of the United States" Nor Does He Hold an "Office under the United States"
a. The "Officers of the United States" Are Appointed Positions in the Executive and Judicial Branches, not the President.
b. An "Office Under the United States" Refers to Appointed Positions in the Executive, Judicial, and Legislative Branches, Not the Office of the President.
II. Section Three of the Fourteenth Amendment Constitutionalized the Second Confiscation Act, Which Used The Same Meaning of "Insurrection" Used In the Militia Act
III. Colorado Cannot Enforce Section Three of the Fourteenth Amendment Against Federal Officials

Amicus brief of The League for Sportsmen, Law Enforcement and Defense

I. The Constitution's Text Demonstrates That The President Is Not An "Officer Of The United States"
II. Section 3's Legislative History Demonstrates The President Is Not An "Officer Of The United States"
A. Section 3's Legislative History
B. The Colorado Supreme Court's Erroneous Analysis Of § 3's Legislative History
III. Case Law Does Not Support The President Being An "Officer Of The United States"
IV. Attorney General Opinions Do Not Support The President Being An "Officer Of The United States"

Amicus brief of The Claremont Institute's Center for Constitutional Jurisprudence

I. A Former President is not within the jurisdictional scope of Section 3 of the Fourteenth Amendment
II. Section 3 of the Fourteenth Amendment is Not Judicially Enforceable Without Implementing Legislation
III. Section 3's Offense Element Requires Congressional Legislation

Filed on 1/18/24

Amicus brief of The Honorable Peter Meijer

1. The Colorado Supreme Court Wrongfully Decided A Non-Justiciable Political Question
a. Determining The Requirements For The Presidency Is Exclusively Within The Purview Of The Legislature
i. The Plain Language Of Section Three Confirms That Congress Alone Has The Power To Determine If A Person Is Disqualified From Holding Office Under Section Three
ii. A Basic Understanding Of The Electoral Process Reinforces Congress's Role in Guarding the Presidency Against Unqualified Candidates
b. The Contours of Disqualification under Section Three are Murky and Give no Manageable Standards for Courts to Apply.
2. The Colorado Supreme Court's Decision, If Allowed To Stand, Will Create Political Chaos
a. States Will Continue to Unevenly Apply Section Three to Former President Trump
b. If the Majority Opinion Stands, Section Three Will Be Ripe for Leveraging as a Tool to Strike Political Opponents from the Ballot
i. Representative Tlaib
i. President Biden and Vice President Harris
iii. Governor Whitmer
iv. The Potential Application of Section Three is Endless

Amicus brief of Judicial Watch, Inc. and Allied Educational Foundation

I. Under Mathews v. Eldridge and Its Progeny, Colorado's Civil Proceeding Was Not an Appropriate Hearing Given the Demands of the Due Process Clause
A. The Interests at Stake in this Case Include the Fundamental Constitutional Rights of Millions of Party Members and Voters, and the National Interest in Governmental Legitimacy
B. The Risk is High that Arbitrary and Erroneous Outcomes from Various State Proceedings Will Impair These Interests
C. The State of Colorado Has No Important Interest in Employing Its Own Statutory Procedures to Disqualify President Trump from The State Ballot
II. If the Decision of the Colorado Supreme Court is Allowed to Stand, Federal Presidential Elections Will Routinely Involve Section 3 Challenges

Amicus brief of James Madison Center for Free Speech

I. Section Three's prohibition against having "engaged in insurrection or rebellion" requires a direct, overt act of insurrection, not incitement through speech.
A. To "engage" requires more than mere words.
1. The text's omission of incitement is weighty evidence that "engage in insurrection or rebellion" does not cover incitement.
2. Plainly disjunctive language puts a wall between the meaning of "engaging" and the wholly separate inchoate acts of aiding or comforting.
B. "Insurrectionists" or "rebels" are not, without more, "enemies."
1. An "enemy" is an enemy nation.
2. Civil War prosecution amplifies the conclusion that "aid or comfort" to nonenemy insurrectionists is not covered by Section Three.
3. Potential overlap of "enemies" and "insurrectionists" does not mean per se overlap.
4. Casual construction of "enemies" leads to dangerous outcomes.
C. The second opinion from Attorney General Stanbery fits well within this construction.
II. Even if Section Three's use of "engaged" included incitement, Brandenburg applies and the Ellipse Speech is constitutionally protected.
A. Under the Brandenburg test, only the Ellipse Speech's words may be analyzed to determine whether they were directed to incite or produce imminent lawless action.
B. President Trump's speech was not directed to inciting or producing imminent lawless action.

Amicus brief of Kansas Republican Party and 32 Other State and Territorial Republican Parties

I. The Present Controversy is not Ripe for Adjudication
A. Political Parties' Choices of Their Candidates for National Offices Implicate the Right to Free Association Under the First Amendment
B. At This Stage, This Question is Not Ripe
II. The Colorado Supreme Court Erred in its Interpretation of the Fourteenth Amendment of the United States Constitution
A. The Colorado Supreme Court may not Independently Determine Qualifications for the President of the United States
B. Section Three of the Fourteenth Amendment is Not Self Executing
C. Congress has Used its Implementing Power Under Section Five of the Fourteenth Amendment, Foreclosing the Analysis of the Colorado Supreme Court

Amicus brief of U.S. Senator Ted Cruz, Majority Leader Steve Scalise, and 177 Other Members of Congress

I. The Colorado Supreme Court's Decision Encroaches on Congress's Express Powers
A. Federal Implementing Legislation Is Required to Enforce Section 3
B. De-Balloting a Candidate Effectively Denies Congress Its Power to Remove a Section 3 Disability
C. Section 3 Determinations Fall Within the Political Question Doctrine Because They Are Reserved for Congress
II. Section 3 Does Not Apply to Former President Trump
III. The Colorado Supreme Court's Decision Lacks Neutral Principles and Will Lead to Widespread De-Balloting of Political Opponents
A. The Decision Below Failed to Meaningfully Confine "Engaging in Insurrection"
B. A Lengthy List of Partisan Grievances Could Be Labeled As "Engaging in Insurrection"

Amicus brief of Professor James T. Lindgren

Amicus brief of Senator Steve Daines & National Republican Senatorial Committee

I. THE COLORADO SUPREME COURT ERRED BY MODIFYING THE QUALIFICATIONS FOR THE OFFICE OF PRESIDENT
A. The Constitution Prohibits States From Altering The Qualifications For The Office Of President
B. Section 3 Imposes A Qualification On Holding Office, Not Running For Office
C. The Colorado Supreme Court Improperly Altered Section 3 And The Qualifications For The Office Of President
D. The Colorado Supreme Court Misconstrued The Constitution And This Court's Precedents
II. THE COLORADO SUPREME COURT VIOLATED THE FIRST AMENDMENT

Amicus brief of Republican National Committee and National Republican Congressional Committee

I. Courts are not the appropriate forum for this dispute.
A. Section Three does not apply until after an election.
B. Section Three did not give state officials power to frustrate the federal government or national will.
C. This Court has cautioned against state control over similar election issues.
D. Congress has not authorized pre-election enforcement of Section Three in state courts.
II. Primary ballot cleansing violates National Republican Amici's First Amendment rights.
III. Section Three does not apply to former Presidents.
A. Presidents do not take an oath "to support" the Constitution.
B. The President is not an "officer of the United States" because that phrase never includes the President in the Constitution.
IV. Section Three does not cover holding the presidency

Amicus brief of Former United States Attorneys

I. The Colorado Courts Erred in Their Application of Colorado Rule of Evidence 803(8).
A. Standard of Review
B. The Beech-Barry Four Part Analysis
C. Analysis
1. Colorado's Findings
2. As a matter of law, the Report does not bear the requisite indicia of trustworthiness and reliability to render it an admissible "public record" per Rule 803(8)
a. While the Colorado Courts Rightly Recognized the Committee's Report Suffered from Potential "Motivation Problems," They Minimized Those Problems and Reached the Wrong Conclusion

Amicus brief of States of Indiana, West Virginia, 25 Other States, and the Arizona Legislature

I. Section 3 cannot be used to disqualify a person from holding office unless Congress first acts
II. Without more direction from Congress, courts cannot say what constitutes "insurrection" under Section 3
III. Allowing state courts to apply Section 3 to Presidents without congressional action would damage our system of government

Amicus brief of U.S. Term Limits

I. THIS CASE DOES NOT IMPLICATE THORNTON.
II. THORNTON IS EGREGIOUSLY WRONG AND SHOULD NOT BE REAFFIRMED OR EXTENDED.

Amicus brief of The Secretaries of State of Missouri, Alabama, Arkansas, Idaho, Indiana, Kansas, Montana, Nebraska, Ohio, Tennessee, and West Virginia

I. Section Three Does Not Empower Secretaries of State to Disqualify Candidates for Federal Office
A. The Plain Text Does Not Empower Secretaries of State to Disqualify Presidential Candidates.
B. Historical Precedent Confirms That Section Three Does Not Give Secretaries of State An Inherent Disqualification Power Under The Constitution.
II. Even if the Court Holds That Section Three Is Self-Executing, It Should Nevertheless Avoid Any Construction That Empowers Secretaries of State To Exercise An Inherent Disqualification Power Because of the Obvious Practical Problems That Would Flow From Such A Decision

Amicus brief of America's Future, et al.

I.THE ELECTION CALENDAR REQUIRES THIS COURT TO ADDRESS THE FOURTEENTH AMENDMENT AND INSURRECTION ISSUESRATHER THAN OPINE ON THE ROLE OF CONGRESS OR MATTERS OF COLORADO LAW
A.No Aspect of Article II, Sec. 1, cl. 5 Eligibility Is Now before the Court
B.A Resolution of the Colorado Law IssuesWill Not Meet the Urgent Need for aDecision on Article 3
C.Primary and General Elections
II.SECTION 3 OF THE FOURTEENTH AMENDMENT DOES NOT APPLY TO PRESIDENT TRUMP
A.The Plain Text
B.Griffin's Case

Amicus brief of Kansas

I. Section 3 Must Be Strictly Construed
A. Strict construction is warranted because Section 3 is penal
i. Section 3 is penal
ii. Penal provisions are strictly construed in favor of individuals
B. Strict construction is necessary to avoid interfering with Trump's First Amendment rights
II. Section 3 Is Not Applicable To Trump
A. Section 3 does not cover the President of the United States
B. Trump did not engage in an insurrection or rebellion

Amicus brief of Christian Family Coalition (CFC) Florida, Inc.

I. The Text of Section 3 of the Fourteenth Amendment and Precedent Under It Indicate a Demonstrable Constitutional Commitment to Congress Alone to Set the Procedures and Standards for Ballot Disqualification
II. The Inherent Interests in National Uniformity, When Dealing With the Application of Federal Law to the President, Require a Uniform National Standard and Uniform National Procedures to Address Qualifications Under Federal Law for Presidential Ballot Access and Office Holding
III. Varying State Definitions of What Constitutes an "Insurrection" or "Rebellion" Against the United States Are Tantamount to Varying State Definitions and Control Over the Federal Government Which is Constitutionally Impermissible
IV. The Disastrous Potential For a Single State Judge to Trigger Non-Mutual Offensive Collateral Estoppel Against a Nation-Wide Presidential Candidacy is Inherently Contrary to Our Democratic Values and Counsels Reversal of the Decision of the Colorado Supreme Court

Amicus brief of Gavin M. Wax, New York Young Republican Club Inc., and National Constitutional Law Union Inc.

I. President Trump Has Not "Engaged" in Any Overt Acts Amounting to Insurrection
A. The Court Below Ignored The Plain Meaning of The Word "Engaged" as Originally Understood
B. The Plain Meaning of The Word "Engaged" as Originally Understood Excluded Mere Rhetoric
C. Case Law Usage of The Word "Engaged" and Its Variations From the Appropriate Historical Period Meant that Overt Acts Beyond Mere Words Were Required
D. The Second Confiscation Act Specified "Engage" and "Incite" as Separate Acts E. The Word "Engage" in the War Clause Requires a State's Direct Prosecution of War
II. Disqualification Under the Insurrection Clause Without An Overt Act Can Only Occur in Instances In Which an Individual Gave "Aid and Comfort" To The "Enemies" of the United States

Amicus brief of Former Attorneys General Edwin Meese III, Michael B. Mukasey and William P. Barr; Law Professors Steven Calabresi and Gary Lawson; Citizens United and Citizens United Foundation

I. Section 3 Does Not Disqualify Presidential Candidates from the Ballot.
A. Section 3's text and structure show that candidates for President are excluded from its reach.
B. Prior drafts of Section 3 confirm that excluding the President was deliberate.
C. Criticism from the other side of the debate cannot withstand scrutiny.
II. Section 3 Requires Enabling Legislation Under Section 5, Such as 18 U.S.C. § 2383.
19 A. Article II's presidential qualifications do nothing to suggest that Section 3 is self-executing.
B. The Fourteenth Amendment contains both provisions that are self-executing and those that require Congress to legislate.
C. Section 3's history reveals that it requires enabling legislation.
D. Congress enacted relevant legislation in 18 U.S.C. § 2383, but President Trump is not accused of violating that statute.
III. It Would Be Highly Imprudent to Interpret Section 3 in Any Way that Empowers Partisan Officials to Unilaterally Disqualify Political Opponents from Public Office.

Amicus brief of Chuck Gray, Secretary of State of Wyoming

I. The President Is Not an "Officer of the United States"
II. Former President Trump Did Not Commit Either Act Described In Section 3
A. This Court should give effect to section 3's two distinct disqualification predicates
B. President Trump did not commit either of Section 3's disqualification offenses 1. President Trump did not engage in insurrection or rebellion against the United States
2. Former President Trump did not give aid or comfort to the enemies of the United States

Comments

[DaveM]

Very helpful! Thank you.

[ah....Clem]

Would be interesting to see the tables of contents of the other briefs ie those supporting the defense or neutral ones.

[John F. Carr]

Those briefs are due January 31.

[ah....Clem]

Oops. Missed that.
Still curious about the ~10 already filed that supported neither party.

[ah....Clem]

Amazing how many otherwise intelligent people will proudly assert "2 + 2 = 5" if it advances their agenda.

Perhaps someone could answer the question: Is the office of the president an office without an officer, or is the president an officer without an office?

[Bruce Hayden]

He’s not an “Officer” because he is elected, and not appointed. So, yes, he has an Office, but isn’t an Officer.

My guess, right now, is that distinction is going to factor into the final results of the case, reversing the CO Supreme Ct, either in the Opinion, or in a significant concurrence.

[ah....Clem]

There are significant ramifications that would follow from a blanket ruling that "the president is not an officer". I don't think those advocating for it have thought it through.

The SC may go so far as to say "for the purposes of 14A sec3 the president is not an officer." but I doubt it. They don't need to rule on that to dispose of the case so why would they?

[Armchair]

Which ramifications?

Although, if you wanted to be selective for 14A sec3, you could argue that as the head of state, the president is not an officer "under" the United States.

[ah....Clem]

The emoluments clause would not apply to the president for one example.

Does anyone think this is a good idea or is what the farmers intended?

[Armchair]

Eh...

The President is a pretty visible position, and in the case of severe emoluments, impeachment is the rational result. I mean, say the President "does" violate that clause? What's the response? Impeachment. There's no other real way to deal with it.

Congress seems to have exempted itself from that clause. And Presidents accept gifts from foreign leaders all the time (on behalf of the United States).

If you needed to, you could argue around the text being different (ie, holding an office versus an officer). But, I think it's not a huge issue ultimately.

[Brett Bellmore]

It's not, "The President is not an officer", though, is it?

Section 3 uses "officer" in two contexts.

First, you have to have previously taken an oath as "an officer of", to support the Constitution, for disqualification to kick in. This is why you have the question of whether the Presidential oath, which is prescribed by the Constitution, is actually an oath to support. Because the oath for other offices DOES use that word, the Presidential oath doesn't.

The second context is to determine which offices are subject to said disqualification, and there it doesn't say "an officer of", but rather "an officer under". Here the argument is that officers under are appointed officers, not elected officers, which would be why Senators and Representatives were specifically enumerated in that clause: They wouldn't have otherwise been swept in, not being appointed.

So, you can perfectly well acknowledge that the President is an officer of the United states, but the office could still not be subject to the disqualification, being neither an appointed office nor an enumerated office.

[MatthewSlyfield]

George Washington accepted gifts from foreign officials without congressional approval.

https://crsreports.congress.gov/product/pdf/R/R45992

George Washington accepted gifts from the Marquis de Lafayette and the French Ambassador
while President without seeking congressional approval;50 and (3) Thomas Jefferson similarly
received and accepted diplomatic gifts from Indian tribes and foreign nations, such as a bust of
Czar Alexander I from the Russian government, without seeking congressional approval.5

Debates over whether or not the foreign emoluments clause covers the President go all the way back to the founding.

[Alpheus W Drinkwater]

Debates about every bit of the constitution go all the way back to the founding. Originalism's biggest problem, in my opinion. And Washington not being called on those possible constitutional violations could be more indicative of his personal reputation among contemporaries, rather than the proper interpretation of the emoluments clause.

[David Nieporent]

Does anyone think this is a good idea or is what the farmers intended?

You mean anyone other than Blackman/Tillman?

[SRG2]

He’s not an “Officer” because he is elected, and not appointed.

Where is this principle to be found in the Constitution? On a plain reading of the Constitution, the presidency is an office ergo its occupant is an officer.

The argument that because someone appoints officers therefore they're not themselves officers is likewise absurd. See any army. .

[Kleppe]

Officers aren't elected. They're appointed.

[Brett Bellmore]

Or, rather, "officers under" aren't elected.

[Voize]

There you go, SRG2. The place in the Constitution where it says this is Article Kleppe.

[SRG2]

So you say. Then why is the position of president called an office? There are other words that could have been used, none of which implying that the holder of an office is an officer.

[David Nieporent]

Officers aren’t elected. They’re appointed.

The thing is, that's a language other than English. There is nothing whatsoever about the term "officer" that turns on how one got the job.

[Magister]

But Gerald Ford as President was an officer, since he was appointed and not elected to that office (or the office of Vice President)?

[SRG2]

No fair using reality as an argument....

[CE]

The "officer" term is somewhat ambiguous, as is the "insurrection" term. But "due process" is not ambiguous, and it would fly in the face of 235 years of lawful government in the USA to start allowing state officials to ban candidates for federal office without so much as a hearing.

[David Nieporent]

Who said Trump wasn't entitled to a hearing? He got one in Colorado and he's getting one in Maine.

[CE]

Senators, Representatives and Presidential Electors are specifically named in Section 3. The President is not. “Officers” is a catch-all term, obviously meant to include lower offices. Section 1 of the same Amendment requires due process before denying any person of “liberty,” which obviously doesn’t exclude the liberty to run for elected office. Section 5 of the same Amendment gives Congress the power to enforce the Amendment, not the states.

And it is non-sensical for states to ban any Presidential candidate, since Presidential candidates aren’t officially on the ballot, the Presidential Electors are. As long as none of the Electors committed insurrection, no one can stop them for voting for the President of their choice.

[John F. Carr]

There was an opinion piece linked or posted here a few months ago about the transformation of amicus briefs from expert opinions into a way to extend the length of a party's brief. Most of the briefs listed above do not appear to offer anything Trump's lawyers couldn't say for themselves.

"Amicus brief of Former United States Attorneys
I. The Colorado Courts Erred in Their Application of Colorado Rule of Evidence 803(8)."

The Supreme Court does not correct errors of state law. It may find a surprise change in state law violated due process (Bouie v. City of Columbia) or was not an adequate or independent state ground to justify ignoring an error of federal law. Here the claimed error is that hearsay evidence was erroneously admitted in a civil case, in violation of due process rights. Because the Colorado rules of evidence are based on the federal rules, the Attorneys say, the Supreme Court of Colorado should follow federal precedent. The brief concedes that the Colorado Supreme Court did use the framework established by federal precedent. The complaint is the result was wrong. That brings into play Supreme Court rule 10: "A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law."

[Bruce Hayden]

I would definitely agree here. My memory is that the CO Supreme Court is in charge of the Colorado Rules of Evidence. I greatly disagree with their decision to allow into evidence, and give weight to, the highly political J6 investigation report, as an exception to the Hearsay Rule. Despite it being from a government body, it had zero indicia of reliability, given the composition of the committee (all appointed by Democrat Speaker Pelosi - 9 Democrats and 2 former Republican Representatives). Yet, it was their determination to make.

[Brett Bellmore]

I don't think the Court is absolutely bound to respect the CO supreme court determination on that, in a case which bears on a federal office. That was "rarely granted", not "never granted".

[Bruce Hayden]

Disagree as to the exception to the Hearsay Rule under CRE. The CO Supreme Court is in charge of the rules of evidence in their court system. The CRE, as with most states, mostly follow the FRE, but not exactly. And, so far, that seems just fine. It’s a state matter.

But the place that I could see the US Supreme Court stepping in is Due Process. The CO lower court utilized a streamlined hearing under their Election Code, designed for after election disputes, prioritizing closure over accuracy. The result was a very short 5 day trial that didn’t allow discovery or much in the name of evidence, besides the highly political J6 committee report. The problem is that it effectively disenfranchises Trump and very likely more than the 73 million voters who voted for him in 2020, and a 5 day hearing is almost assuredly inadequate for that.

[Life of Brian]

There was an opinion piece linked or posted here a few months ago about the transformation of amicus briefs from expert opinions into a way to extend the length of a party’s brief.

I'd actually be interested in reading that piece -- I'm not aware of any former "expert opinion" limitation. I suspect that in practice you're now seeing a lot more "me too" amicus briefs simply because the barriers to entry have gone down significantly: most notably, about a year ago SCOTUS dropped the requirement that the parties must consent to the filing of non-governmental amicus briefs (either individually or a blanket consent for the case, the latter of which I imagine was often the common practice anyway). And there are now word processing templates generally available that comply with all the arcane formatting rules, so if you're admitted to the court or know someone who is and is willing to sign off, the only non-avoidable cost is printing/delivering the 40 physical copies.

In practice, SCOTUS need not pay any attention at all to any amicus brief, and I'm sure it doesn't take long to get a "blink" impression on which ones, if any, are going to be worth consuming in detail.

[Bruce Hayden]

My prediction, after reading these briefs, is a 7-2 decision overturning the CO Supreme Ct, probably fairly narrow, to get J Kagan onboard. Driving the decision, but maybe not discussed much, will probably be the list of horrible that are likely to occur if the CO decision is not overturned. Imagine an election this year where Biden has been removed from the ballot in 20 states, and Trump has been removed in another 20. How does that reinforce the legitimacy of our elections?

Here are the grounds for overturning the CO decision in order of likelihood:
1. The President (and Congress) aren’t”Officers” of the US, because they are elected, and not appointed. Quick and easy, which would appeal to CJ Roberts, a minimalist in this sort of decision.

2. § 3 is not self executing, esp in view of § 5 allowing Congress to write legislation to enforce the 14A, and § 3 allowing them to remove disabilities. Driving this are Political Question and Supremacy doctrines. Signing onto the Cruze brief were most of the Republican members of Congress, claiming that CO is attempting to appropriate their § 5 power here.

What I think might be in the concurrences are:
1. The definition of “Insurrection”, and how the CO decision violates the 1st Amdt.

2. Lack of adequate Due Process. The interests of Trump and the 73 million who voted for him in 2020 are significant. Due Process would allow them to have been heard. They weren’t. It was a streamlined procedure, aimed at post election disputes, and the only real fact finding was by Pelosi’s highly political J6 - that didn’t allow Trump or his supporters to be adequately heard either.

Probably missing something here, and we haven’t seen the briefs for the Respondent yet… But I see enough to convince at least, probably all 6, of the Republicans on the Supreme Court as to the result. We shall see.

[ah....Clem]

1 Elected vs appointed being the determining factor in whether it is an "office" seems to be a novel opinion. Even Blackman hasn't gone through the looking glass with that one.

2. There are certainly due process issues to be considered. Which is why I think a remand and stay is a likely outcome.

[Mr. Bumble]

"Which is why I think a remand and stay is a likely outcome."
Not much of a road ahead to kick the can down. This should be resolved sooner rather than later.

[Bruce Hayden]

The problem there is that CO can naval gaze a bit, and come back with something similar. Other states are trying to do the same thing, on both sides of the political divide. They face a spring of turmoil here, and maybe a summer of uncertainty, with the major candidates not knowing which states they will be bounced from te ballot, and where they should be spending their campaign resources.

As for Due Process - if the decision turned on that, They would have to set out how much Due Process was required. That would be messy. If CO went from a 5 day hearing to a 6 day hearing, would that be enough? How about streamlined discovery, and a limited number of witnesses on each side? Who could intervene, esp since the election affects all 335 million of us? I think that they would be just asking to see this case again, or any number of similar cases (on both sides), if they determine the case based on Due Process, and remand.

Just my thoughts, subject to change in the future.

[ah....Clem]

Oops. I now see that Blackman actually did argue that elected officers are somehow not "officers".

I figured that this would be too tendentious for even Blackman, but I suppose I'll have to adjust my expectations even further downward.

[CE]

There's a reason that Senators and Representatives were specifically called out.

[SRG2]

There are certainly due process issues to be considered.

As, IIRC, Somin pointed out, the due process clause applies to life and liberty, not to eligibility - and in any event because the court of first instance held a 5-day hearing on the insurrection position, Trump did receive due process anyway.

[Brett Bellmore]

Due process applies to everything, the difference is the nature of the process due, not whether there's a requirement for due process.

[Sarcastr0]

For civil matters, there's a default process and it was well-followed.

You want to depart from the default process, which happens. But your reasoning is this janky amateur originalism 'the post Civil War context means criminal due process was implied.'

And then you want to shift the burden and demand people justify why the usual process was followed. Along side complaints of how unfairly Trump was treated based on getting the facts of the hearing absolutely wrong over and over again.

Which underscores how outcome-oriented your reasoning is.

[Brett Bellmore]

"‘the post Civil War context means criminal due process was implied.’"

Nothing of the sort. Congress actually enacted enabling legislation in 1870 that allowed for disqualification by federal quo warranto writs. It was repealed in 1948.

That leaves the only relevant enabling legislation the federal law against insurrection, which is a criminal statute.

I suppose Congress could reenact the former quo warranto statute, making it again a matter of a civil trial. But they haven't, so the only legal basis for disqualifying Trump would be convicting him under the federal insurrection statute.

That's the legal argument which I expect to prevail before the Supreme court.

Now, states can probably use whatever process they want for disqualifying people for state office, since they don't need Section 3 to do that anyway.

And Congress has the article 1 power to judge the qualifications of its own members, and doesn't need Section 3 to declare somebody disqualified. Indeed, they started doing that BEFORE the 14th amendment was ratified! Likewise they can refuse to confirm any nominee to a federal position on any basis they like, and again don't need Section 3 or enabling legislation to do it.

But the Presidency isn't a state office, and isn't subject to Congress' article 1 power to judge qualifications, so for that office they DO need Section 3, and they HAVE enacted enabling legislation. Use it, or go home.

The prudential argument is that the union could only get away with casual disqualification of former Confederates right after the Civil war because it WAS right after a civil war, and the people they were doing it to were the beaten down losers of that war.

Casually disqualifying people from office on grounds that half the country thinks are bogus isn't the sort of tactic you should expect to get away with in normal times. It's inflammatory on a scale you're simply refusing to appreciate.

[Nige]

'Casually disqualifying people from office on grounds that half the country thinks are bogus'

They also think Trump won the last election, though.

[CE]

The liberty to run for office is still liberty, perhaps one of the most important liberties.

[Brett Bellmore]

See, this is how you use "Read more".

[Rev. Arthur L. Kirkland]

Jonathan Mitchell's brief for former Pres. and current defendant Donald Trump stands out consequent to its abnormal typeface.

My most recent Supreme Court experience is somewhat stale, but I vaguely recalled a requirement to use Century Schoolbook -- which I use frequently, because I like it -- or something similar.

Perhaps the linked version of the brief is afflicted by a translation glitch, or perhaps that oddball font thing is part of the Century family, or perhaps the Supreme Court has relaxed its requirements. Or perhaps this presentation, much like random capitalization, is an affectation of the disaffected clingerverse.

[Chesterton Orwell]

The Reverend actually raises a good point, for once: What's up with the weird sans serif font in the Petitioner's brief? I haven't had a Supreme Court case in a while so I don't remember the precise rules, but I seem to recall something about a proportional serif font. TNR is abominable, but Garamond or (per the Rev) Century Schoolbook are nice.

[The Margrave of Azilia]

He used the sans serif, but he did not use the Calibri.

[Rev. Arthur L. Kirkland]

After more consideration, I lean toward "translation issue" as the reason for the strange font. If someone saved the document in an unusual manner, or the submitted document had been switched between pdf and a different format (maybe more than once), the result could be that thing we observe. I doubt any member of the Supreme Court bar would flout or be ignorant concerning the formatting rules.

[mydisplayname]

Handy summary. The briefs of David E. Weisberg, Public Interest Legal Foundation and Hans A. von Spakovsky [I & III], Devin Watlins and Charles Watkins [II], and James Madison Center for Free Speech [IA & IB] are near the top of my pile near the Blackman/Tillman brief. These brief are not mere surplusage (borrowing that cool phrase from a brief).

The Public Interest Legal Foundation must be commended for its proper use of the all-caps attribute rather than typing all-caps. Makes cut-and-paste so much easier!

Weisberg, David E., “Robert E. Lee Could Have Been President,” The Wall Street Journal (September 8, 2023): https://www.wsj.com/articles/robert-e-lee-couldhave-been-president-law-donald-trump-election2024-voters-candidate-law299a2590?mod=Searchresults_pos1&page=1

[F.D. Wolf]

A tangential matter I have not seen mentioned (though I imagine someone has) is, if President Trump is indeed disqualified from office because of his role in "insurrection", then, under double jeopardy principles, he cannot be prosecuted for his role in said "insurrection". Or, at least, so said Chief Justice Salmon Chase. Case of Davis, 7 F. Cas. 63 (C.C.D. Va. 1867) (No. 3,621a).

Jefferson Davis, President of the Confederacy, was charged with treason. Davis argued that Section 3 had already imposed punishment upon him, so, under double jeopardy principles, could not be punished again. Chief Justice Chase, presiding over the case as circuit justice, agreed. The case was certified to the Supreme Court for review, but the prosecution was ultimately dropped by the government, so the Supreme Court never got to opine on the matter.

Such a conclusion may seem odd to modern readers, but it is not in historical context. The Constitution prohibits bills of attainder. (A bill of attainder is an act by a legislature summarily declaring an individual or group of individuals guilty of a crime and imposing punishment). Section 3 is essentially a bill of attainder, an exception to the otherwise prohibited practice. If Parliament had passed a bill declaring John Doe guilty of treason and sentencing him to five years in prison, then it would not be doubted that, under double jeopardy principles, John Doe could not later be tried for treason in a court of law.

[Dan Schiavetta]

They were loath to put Confederates on trial, knowing the blowback, only a handful were actually tried. As for Davis, Lincoln was hoping he would escape. That was the reason for Chase's decision, and it was a policy decision, as you point out.

But as a matter of law, the Fifth Amendment says:

"nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"

Being disqualified under 14A sec. 3 is not putting anyone in jeopardy of life or limb, so there would be no double jeopardy issue.

[F.D. Wolf]

I'm not suggesting I agree with Chase. In fact, I probably do not, though I can't say I've studied or contemplated the issue to any great extent.

But, of course, "life or limb" is a phrase of art, that literally construed wouldn't even include imprisonment, much less fines. No one, however, would seriously suggest that the government could try you repeatedly for a criminal statute that imposed only a fine after an acquittal.

Disqualification from office is still a punishment under some statutes. For example, one convicted under 18 U.S. Code § 227 - "Wrongfully influencing a private entity’s employment decisions by a Member of Congress or an officer or employee of the legislative or executive branch":

shall be fined under this title or imprisoned for not more than 15 years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.

Of course, the disqualification is not the only punishment, but what if it were? Would it cease to be a criminal sanction? Again, I don't mean to suggest that Chase was necessarily correct, but his argument was hardly frivolous.

[Voize]

US v. Halper, 490 US 435 (1989) is instructive here, holding that the Double Jeopardy clause protects against a second criminal trial (after conviction or acquittal) for the same offense but also against multiple punishments, and that a civil penalty (where the State is claimant) counts as "punishment" in this context if its purpose involves retribution or deterrence rather than compensation and protection from harm.
Administrative penalties like this disqualification are similar, which is why the DMV suspending your license for failing a breathalyzer doesn't preclude prosecution.

[Causter]

> No one, however, would seriously suggest

In these days of many unserious people opining unseriously on serious things, you cannot seriously suggest that a literal interpretation of double jeopardy is beyond serious debate. Indeed, even outside the context of 14A S3 nonsense, the double jeopardy clause has been under sustained attack for several years. First SCOTUS decided that what was really prohibited was triple jeopardy not double jeopardy, and then SCOGA decided that it was okay to retry people for acquitted offenses if they appealed any other offenses (and as long as the state really really wanted to); and it's been many long years that SCOTUS has allowed criminal sentencing for acquitted offenses. Pretending that double jeopardy is a line that will not be crossed is hopelessly naive and contrary to all evidence.

[Voize]

Trump argued double jeopardy in one of his motions to dismiss the DC criminal case and continues to argue it on appeal.

[SRG2]

And he will continue to lose.

[F.D. Wolf]

That is a separate issue, concerning the language of the Impeachment Clause. This one concerns Section 3.

[Stephen Lathrop]

Want to settle the officer question? It has nothing to do with whether a president is elected, and someone else is appointed. Officers, elected or appointed, can be impeached. Nobody else can be.

[Voize]

Is someone an officer? Only if they can be impeached.
Can someone be impeached? Only if they are an officer.

That doesn't appear to get us any closer to a workable rule.

[Bruce Hayden]

Or President or VP. Importantly, they are listed separately, suggesting that the Pres and VP are NOT Officers.

[Stephen Lathrop]

To me it suggests emphasis—NOT EXCEPTING THE PRESIDENT AND VICE PRESIDENT.

Except for officers, who else can be impeached?

[Bruce Hayden]

Article II § 5 P 1
“ The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

If the President and VP were “Officers”, then they wouldn’t need to be named separately, or alternatively it would read “President, VP, and all OTHER civil officers of the US”. There is a statutory interpretation doctrine that I saw mentioned last night that essentially says that if you have specific items, then a general category, the specific items aren’t included in the general category, in a discussion of 14A § 3.

[Bruce Hayden]

A14 § 3

“No person shall be 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, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

Notice the same sort of thing here.

[Alpheus W Drinkwater]

Bruce Hayden, Stephen Lathrop, and all VC commenters are free to express their opinions on this forum.

Are Bruce and Stephen VC commenters?

[santamonica811]

Alpheus,
I don't agree with Bruce's legal argument, nor his conclusions. But I think it's a reasonable linguistic point he's making.

If you turned in your post to me for editing, I'd say, "Add 'other' before 'VC', so that it is clear that you are including Bruce and Stephen in the group of commentators." I think it's a fair reading of your proposed sentence to assume that Bruce and Stephen are, in fact, NOT mere commentators. (Perhaps they hold the august rank of Conspirators, or even have been added as blogmeisters, or the like.)

[CE]

In the same way that Senators and Representatives aren't officers, which is why they were listed separately in section 3.

[Josh R]

Here is the Amar brother’s brief in support of respondent (although they claim it to be in support of neither party). The prose sounds like one of Akhil’s podcasts (very much his voice). They too add something new (the first insurrection of 1860-61). And their 20 questions format is interesting, if not necessarily persuasive.

[Alpheus W Drinkwater]

Thanks for the link, will definitely read that.

[santamonica811]

Thanks Josh, for the link. It’s an extraordinarily-well-written paper. Although most VC readers will not agree with its conclusion (ie, that Trump is covered by this part of the 14th Amendment), it will make just about everyone assess and reassess their positions.

If there are similarly excellent briefs arguing for the “pro-Trump” side, I hope someone will point them out and give a link, once we've reached the submission deadline for those.)

[Reallynotbob]

Good thing Constitutional Law is resolved by petition.

[Voize]

Lots of amicus briefs, but few distinct arguments.
If the Court were in the business of counting amici votes the tally might be meaningful (although we need to wait for the 31st deadline for amicus briefs in support of respondent before we can really compare), but that's not likely how the Justices view their role.

[Bruce Hayden]

My experience is that a lot of amici briefs means a lot of repetition. They build a kinda tapestry. We were rarely the only ones making points, but sometimes we made them better, or more authoritatively.

[Joe_dallas]

The analysis below is quite dubious given the language in article 2 which says the president shall hold the "office" for four years.

A. In the Constitution of 1788, the President did not hold an "Office … under the United States"
B. In the Constitution of 1788, the President was not an "Officer of the United States"
C. In 1868, the President was not an "Officer of the United States" in the Constitution.

[Brett Bellmore]

Again, the argument turns on the difference between officer “of” and officer “under”, not between “officer” and “not an officer”. And the difference between an oath to “support” and to “uphold” the Constitution.

In order for disqualification to be a consequence of insurrection, you have to previously, as an “officer of”, (The President IS this!) have taken an oath to “support” the Constitution, which the insurrection violates, leaving you foresworn, and thus clearly unqualified for any office you have to take an oath to occupy.

But while the President IS an “officer of”, his oath, prescribed by the Constitution, is not an oath to “support”, but to “uphold”, so even if he HAD engaged in insurrection, the penalty wouldn’t kick in.

I think this is a bit too clever, “support” and “uphold” are clearly synonyms. And the Presidential oath was written decades earlier, you can't say that it's the same people using two different words, and thus they must have meant different things by them, the way you can with "of" and "under".

The second step in the argument is that it’s a disqualification from holding, not any office “of”, but any office “under”. If ALL offices were offices “under”, then listing Senators, Representatives, and Electors would have been seriously redundant.

So, as the argument goes, federal elected positions are NOT “offices under”, and as they conspicuously omitted the Presidency from the list of elected offices, it’s not an office you’d be disqualified from even if you HAD engaged in insurrection after taking a relevant oath.

Maybe they figured by ruling out insurrectionist Electors they had it covered, and that it would be redundant to mention both them AND the Presidency. But, it’s very conspicuous that they didn’t include the Presidency in that list, and why not?

THIS argument is somewhat more reasonable, but I don’t think it will carry the day.

[Life of Brian]

A. In the national electorate, voters with Unionist sentiments far outnumbered those with Confederate sentiments, and it would therefore be impossible for the latter to pick winners in an election for president and vice president

This strikes me as one of those "huh -- well, of course" points akin to the "disqualified from serving, not from running" point that popped up a couple of weeks ago.

Curious if there's any rejoinder more serious than "nuh uh."

[Magister]

The possibility that pro-Unionist sentiment would become as fragmented as Lincoln's opponents in 1860?

It would be telling if Congressional debate on the amendment had made this point, instead of someone asking "what about the President and Vice-President?" and being shown the "office, civil or military" text to cover that, as has been reported to have actually occurred.

[Life of Brian]

So "nuh uh -- oh, and SQUIRREL"?

I guess I should have been more specific.

[Magister]

It seems a reasonable concern; the experience of the drafters of the 14th amendment would be more fragmented electorates than later experience of the two party system. But of course, as always, Life of Brian has to misrepresent his original request when an answer is received. Quibble some more, LoB!

[Kazinski]

Its hard to take this list seriously, Josh missed my “brief”:

https://docs.google.com/document/d/1Z1d-Q8dzR8tGeAXGRXLqY82dkXQIVS_0fAG_KaIW65g

I read Josh’s brief, and at least for his self-executing refutation he, like most lawyers, gives far too much credence to precedent. He puts a great deal of effort into exploring the “sword shield dichotomy”, which is nothing more than judges invoking the Supremacy Clause as the shield, and ” Congress shall have the power…” As the sword. It works much better as a strictly textualist argument, rather than as a some judge said it and other judges repeated it argument.