Prof. Rick Hasen (UCLA) on Trump's Brief in the Section 3 Disqualification Case

From his Slate column today:

There are many ways that Trump could win in the Supreme Court. For example, the court could accept the First Amendment defense Trump has offered. Or it could agree with Trump that states can only consider disqualifying candidates under Section 3 if Congress passes a statute authorizing it. Or it could agree that Trump did not have an adequate chance to defend himself in the state court. Or it could hold that the evidence was not sufficient to show that he actually "engaged in insurrection." Or it could resuscitate an extreme version of the "independent state legislature" theory that Colorado law did not authorize Colorado courts to remove Trump from the ballot for violating Section 3. Winning on some of these issues would mean not only that Trump would be back on the ballot in Colorado, but potentially throughout the country.

What's most interesting about Trump's brief, though, is what it leads with—and what it leaves out, telling us a lot about where Trump thinks he has the best shot at the Supreme Court and the strength of his arguments. Trump leads with the hypertechnical argument accepted by the trial court (but rejected by Colorado's Supreme Court) that Trump is not an "officer of the United States" for purposes of Section 3. Trump devotes about three times as much space to this argument compared to any of his other individual arguments. [To be precise, the argument takes up 12½ pages, and the two longest other arguments each take up a bit more than 5 pages each. -EV]

Briefs are typically written to put the strongest argument first. Why would Trump think the officer argument is the strongest? It seems weak: As Trump's challengers argue in the Supreme Court: "It would defy common sense to hold that Section 3 disqualifies every oath-breaking insurrectionist officer (down to postmaster or county sheriff) except the most powerful one—a former Commander-in-Chief." This is especially true given the historical context of the amendment's passage. As conservative scholar Sam Bray recently wrote over at the Volokh Conspiracy:

It is hard to imagine that the Reconstruction Congress that proposed Section 3 of the Fourteenth Amendment, and the state legislatures that ratified it—in the middle of an intense struggle with President Andrew Johnson, and focused on all the problems that could come from a President who was not on board with reconstruction—would say that the two people who should be allowed to be Confederates would be the President and Vice President.

Trump or his lawyers must have calculated that a technical argument would be more appealing to the conservative majority than his other ones, such as an argument that Trump had the constitutional right to encourage his supporters to invade the Capitol…. Trump's lawyer probably does not want to get up in front of the justices at oral argument and parse Trump's comments made in the speech before the Capitol invasion about why his supporters need to "fight like hell." (Trump's brief says he made that comment "metaphorically.")

Equally interesting is an argument that Trump left out of his brief on the merits. When he first petitioned the Supreme Court to take the Colorado case, Trump opened with the argument that disqualification under Section 3 is a question that only Congress, not the courts, has the power to decide. In legal parlance, it's a "nonjusticiable political question" left for Congress alone. That argument has disappeared entirely from Trump's current merits brief in the Supreme Court….

The reason Trump likely abandoned it is because of what could happen down the line…. Without the court weighing in on disqualification before the election, there's a real chance that Trump could appear to beat Biden in the Electoral College vote in November, followed by members of Congress declaring on Jan. 6, 2025, as Electoral College votes are counted, that Trump is disqualified from serving given his participation in an insurrection. If that happens, Trump is going to want to go to the Supreme Court to ask them to second-guess or overrule a congressional determination about disqualification. That's of course a recipe for chaos….

I haven't focused enough on the case to myself decide on the relative strength or weakness of the various arguments, but Prof. Hasen's analysis struck me as worth passing along; and I agree that Trump would want a decision that offers a definitive interpretation of Section 3 under which he's not disqualified, rather than one that leaves the matter to Congress to decide when tallying the electoral vote.