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.

Comments

[shg]

“Defy common sense” doesn’t strike me as much of a legal argument. Nor does “hard to imagine.” What it fails to explain is why president and vice president were left out of Section 3 when senator and representative were expressly included. This isn’t to say that there is logic to their omission, necessarily, but that if “defies common sense” is the best Hasen can muster, it’s hardly overwhelming.

[Stephen Lathrop]

shg, the newly-filed historians' brief asserts as a matter of originalism that the president and vice president were not left out. It instead cites debate during the original founding that the president and vice president, along with Supreme Court justices, were enumerated as officers in their own category, termed, "constitutional officers." Those same debates made clear that there was not any distinction between constitutional officers and others for purposes of constitutional text referring to, "officers." The point of the distinction seems to be that to make that distinction embracing both elected (president and vice president) and appointed (Supreme Court justices) constitutional officers erases a possibility of misinterpretation based on appointed vs. elected officers. A further citation points out that the impeachment clause applies alike to all of them.

[Roger S]

If the argument defies common sense, then maybe that is why it takes 12 pages to explain it. The other arguments are more obvious, and require less explanation.

[not guilty]

Actually, showing that an adversary's position defies common sense is a pretty strong argument. Avoiding strained constructions and absurd results is pretty important to a reviewing court.

[Krayt]

Avoiding strained constructions and absurd results is pretty important to a reviewing court.

I’ve been saying he’s an officer all along.

What strained constructions there are are all over the place in declaring him an insurrectionist.

What absurd results are are those that arise from the idea freewheeling individual states can keep him off the ballot, when only one or two purple states guarantee a loss in November. No national concensus on obviousness of insurrection, unlike the Civil War. And that lack of same concensus used to prevent a national concensus.

[Drewski]

Please don't use the word "consensus" again until you've turned spell check on.

[ah....Clem]

"What it fails to explain is why president and vice president were left out of Section 3 when senator and representative were expressly included. "

Well, it doesn't have to explain that if you read the plain meaning of "...any office, civil or military..." and reach the obvious conclusion that those offices were *not* left out.

IOW, the ball is in the court of those claiming they were left out to come up with some plausible reason why. I haven't seen that addressed, other than some claims of "sloppy drafting" i.e. a literalist interpretation that they didn't intend to say that but they did.

[iowantwo]

Sec 3 enumerates senators and representatives. Also enumerates the electors of President and Vice President. Why them AND POTUS and VP?
Now we have ONLY the legislature can remove the disability. Meaning States cant be preventing electing the President.

The larger over arching core constitutional purpose, is the People, through their representatives have the power to elect, and impeach.
Why then would a few state functionaries be able to deny the people their rightful power to select the President?

[Lee Moore]

Well, it doesn’t have to explain that if you read the plain meaning of “…any office, civil or military…” and reach the obvious conclusion that those offices were *not* left out.

But that leaves you to explain why the President and Vice President are expresslty enumerated in the Impeachment clause, but not in Section 3.

Those who claim that the President is not, for the purposes of the Constitution, an "Officer of the United States" can claim the merit of consistency between their interpretation of the two provisions. You can't.

IOW, the ball is in the court of those claiming they were left out to come up with some plausible reason why. I haven’t seen that addressed, other than some claims of “sloppy drafting” i.e. a literalist interpretation that they didn’t intend to say that but they did.

Because the President and Vice President are elected by electors, and the electors cannot be oath breaking insurrectionists. Thus if the non oath breaking electors are good with an oath breaking insurrectonist President, then that's something that the nation should tolerate.

But in any event, in the political context of the time, there's next to no prospect of any insurrectionist being elected President, whereas there's every prospect of insurrectionist Senators, Congressfolk etc.
Presidents do not fall within the "mischief."

(Note that nobody claims that a non-oath breaking insurrectionist can be barred frm the Presidency by Section 3, so we cannot read the provision as a vital protection required by the nation to keep a Reb from the White House. )

[iowantwo]

Because the President and Vice President are elected by electors, and the electors cannot be oath breaking insurrectionists.

Then Sec three REQUIRES the President to be elected, to trigger sec 3. Because Oath breaking insurrectionist only move into action AFTER the vote of the People.
Just like Sec 3 requires the President has been elected, in order for congress to remove the disability.

The People through their Representatives have the power to elect and power to remove (impeachment). Giving the People the opportunity to use their power to hold those legislators responsible for their actions, at the next election.
The cleanest path is for congress to remove the elected insurrectionists after they are elected.
The claim is a charge of insurrection is not required.
Fine.
Then the People will decide.
First during the election
Then if congress overrules to will of the people and removes those elected, then the people, at the next election will hold the legislators accountable. Either by removing the disability, or removing the insurrectionist.

In the end the people get the final say.

Where lies the danger of allowing the People to make the decision?

That is the choice of SCOTUS. The People, or a passel of unelected state functionaries denying the People their constitutional choices at the ballot box

All this discussion is the opposite of a Representative Republic

[Kazinski]

I think while the officers argument is strong, its hardly the best route to go to restore Trump to the ballot. But there is one reason why Trump’s brief overweights it, its because that was what the Colorado case was decided on and what the Colorado Supreme court reversed. And it provides the most sure grounds for disposing of the case once and for all. I don’t think is particularly unusual for a brief to focus on the major points of the decision and the appeal, after all the question before the court is “Whether the Colorado Supreme Court erred in ordering former President Donald Trump excluded from the 2024 presidential primary ballot.”

Its probably a good idea to put their focus on the questions the Colorado courts focused on.

That said Trump’s brief then goes on a tour of the other grounds the court could decide the case on, so at least they can’t claim those issues were forfeited. With the accelerated schedule putting pressure both on those writing the briefs and the judges considering them I don’t think adding another 10-20 pages to the other arguments will provide much utility.

[Commenter_XY]

I wondered about that = That said Trump’s brief then goes on a tour of the other grounds the court could decide the case on, so at least they can’t claim those issues were forfeited.

Is that deliberate? The throwing of the 'legal kitchen sink' into the brief?

[Kazinski]

The Supreme Court will do what its going to do, but its generally frowned upon for judges to make a parties arguments for them.

Getting it all in the brief, any possible grounds for reversing, is important so the judges at least have the issue before them without having to raise it themselves.

[Brett Bellmore]

Indeed, if he prevails on the "not an officer" point, Section 3 is just off the table, period. Even for Congress.

If he wins on the other basis, they can keep trying to revive the charge by different means. Even my preferred approach, treating federal insurrection law as enabling legislation that can't be routed around, would subject him to the risk of the DOJ finally indicting him for insurrection.

[Sam Bankman-Fried]

I see this as no different than the “mute” button in this comment section. So if you have no problem muting a fellow commenter because they’ve beaten you like a dead mule for 15 years then you should have no problem with muting Trump.

[damikesc]

Which would make a joke any complaints we EVER make about a country being a banana republic for imprisoning political opposition.

If SCOTUS wants a hot civil war (as opposed to the current cold one), side with Colorado. The Democrats are clearly angling for one.

[MyWag13]

Insurrection, Disqualification, and the Presidency

28 Pages Posted: 8 May 2023
John Vlahoplus

Date Written: April 9, 2023
[snip]
Even before the Fourteenth Amendment, the House Committee on Foreign Affairs had determined in 1834 that the President is subject to the Foreign Emoluments Clause of the Constitution of 1788, which applies to persons

“holding any office of Profit or Trust under” the United States.

[snip]
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4440157

[iowantwo]

The House committee has no power to make such a finding.

[Lee Moore]

I agree that the reason to lead with the “Officer” question makes sense given the Colorado court history.

It offers the GOP appointed SCOTUS majority an opportunity to affirm the Dem appointed Colorado district judge’s opinion on the Officer point and thus provides an element of cover from the inevitable “just partisan hacks” charge. Any other basis and they are on their own.

If they go this way, expect Roberts to write it and lay on with a trowel references to the Colorado District Court.

[not guilty]

Donald Trump's counsel of record on the merits brief, Jonathan Mitchell, was not on the petition for certiorari. Mr. Mitchell has relevant Supreme Court experience, and I suspect the shift in emphasis from the cert petition to the merits brief is attributable to the change in counsel.

[Kazinski]

"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."

We already know the Supreme Court is hardly a fan of some heated rhetoric, for instance:
"“You have released the whirlwind, and you will pay the price,” Mr. Schumer said. “You will not know what hit you if you go forward with these awful decisions.”

Chief Justice Roberts condemned Mr. Schumer’s remarks.

“Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” he said in a statement. “All members of the court will continue to do their job, without fear or favor, from whatever quarter.”

But I really don't think they will have any problem recognizing Trump's speech as purely speech.

On the other hand they might ask, if the SG is at oral arguments, if Trump is an insurrectionist, why he hasn't been charged with Insurrection.

I don't think the court is going to convict Trump of an offense he hasn't been charged with.

[SRG2]

I don’t think the court is going to convict Trump of an offense he hasn’t been charged with.

But nonetheless 14.3 doesn't require a conviction. The drafters could always have made that a requirement, yet they didn't. This is reasonable originalist jurisprudence.

[Krayt]

But nonetheless 14.3 doesn’t require a conviction

Because it would be obvious. Not a bunch of highly motivation partisan hyperventillations coupled with knocking him off a purple state or two, all that would be needed.

[ObviouslyNotSpam]

As "obvious" as providing that Congress can remove the disability imposed by section 3 by a 2/3 vote--thus allowing a "convicted" insurrectionist to hold a federal or state office again?

[damikesc]

"The drafters could always have made that a requirement, yet they didn’t."

Could have also named the President and VP as subject to this, yet they did not.

[not guilty]

.

On the other hand they might ask, if the SG is at oral arguments, if Trump is an insurrectionist, why he hasn’t been charged with Insurrection.

I don’t think the court is going to convict Trump of an offense he hasn’t been charged with.

The United States is not a party to the lawsuit, and the Solicitor General has not filed an amicus brief, so she will not participate in oral argument.

Donald Trump has not (yet) been convicted of any offense. That, however, is irrelevant. The Colorado Supreme Court imposed a civil disability based on the record developed at trial. Disqualification under § 3 of the Fourteenth Amendment is not criminal punishment.

Criminal culpability and liability for a civil penalty can result separately from the same conduct. Indeed, Trump theoretically could be indicted for insurrection under 18 U.S.C. § 2383, tried and acquitted, and still remain subject to disqualification under § 3. Compare, United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972); Helvering v. Mitchell, 303 U.S. 391 (1938).

[santamonica811]

"...Capitol invasion about why his supporters need to "fight like hell." (Trump's brief says he made that comment "metaphorically.")..."

I was struck by the last part of this. Trump's brief says that "fight like hell" was metaphorical. I mean, OF COURSE it was metaphorical. Fighting like hell is not a quantifiable amount of fighting. It is subject to no meaning other than, "We're/you're gonna fight a great deal." or "Fight with great intensity" or "Fight for a long time." No general ever said, before a battle, "Division One, you're going to fight like hell. Division Two; you're up against tanks, so you're gonna have to fight like two hells. Division Seven, we expect minimal resistance on your front; so you're only have to fight like 5/7ths of hell."

The fact that the statement was metaphorical is (a) undeniable, and (b) completely irrelevant to any legal analysis. (Now, if the statement had been something like, "Go out there, to Congress, and kill 'em!" Or, "Go to the Capitol and take no prisoners!" . . . then, of course, it would be worthwhile to determine how literal Trump was vs how metaphorical.) *That* analysis would be legally relevant.

[BadLib]

As well, variations of the word "fight", including those in the past tense - "fought", are used in that very same speech to refer to actions that clearly are/were not violent acts or calls for same. Such as:

And Rudy, you did a great job. He's got guts. You know what? He's got guts, unlike a lot of people in the Republican Party. He's got guts. He fights, he fights.

Yet, to my knowledge, "Rudy" has never even been accused of violent physical actions in his support of Trump.

Jim Jordan and some of these guys, they're out there fighting. The House guys are fighting.

Again, I'm not aware of even accusations of violent acts by these individuals.

And you have to get your people to fight. And if they don't fight, we have to primary the hell out of the ones that don't fight. You primary them.

Republicans are, Republicans are constantly fighting like a boxer with his hands tied behind his back. It's like a boxer. And we want to be so nice. We want to be so respectful of everybody, including bad people. And we're going to have to fight much harder.

The American people do not believe the corrupt, fake news anymore. They have ruined their reputation. But you know, it used to be that they'd argue with me. I'd fight. So I'd fight, they'd fight, I'd fight, they'd fight. Pop pop.

That's what they do, they suppress. You don't fight with them anymore.

But our fight against the big donors, big media, big tech, and others is just getting started.

Does anyone seriously think that Trump was calling for physical violence against "big" donors, media, and tech?In context, Trump is using the word "fight" in the same way that the "Fight for $15" uses the term, the same way the Center for Reproductive Rights uses the term when they declare "We need you with us for this long fight ahead" and state that they themselves are engaging in "the forward fight".

[BadLib]

(I'd edit that to clean it up where "break tags" were lost, but from experience I know that the stupid Reason software will probably throw out all my block quote tags and make me re-enter them.)

[Nige]

'Again, I’m not aware of even accusations of violent acts by these individuals.'

That's because in those instances, violence did not break out. In the instance under discussion, it did.

[windycityattorney]

Yes of course there are examples where he is using the word fight in the metaphorical sense. But when telling the crowd to fight its not in the same context...it was in the context that he created where if they don't fight, they wouldn't have a country anymore.

Is fighting for your country different than fighting big media? What if Trump knew when speaking the words that some of the crowd was indeed 'wanting to fight' in the literal sense? That some of them were expected to be armed? Is telling those people to 'fight like hell' different context or no? I think you would have to look at the whole picture - which includes everything leading up to that moment. Which is what the CO district court did and what the CO Sup Ct also did.

[Publius_2020]

I'm not sure how many actual trials or appellate arguments that Prof. Hasen has done, but in my experience, when you want to argue to a Court that your opponent's position is "weak," you should be able to come up with something better than: "It defies common sense," or "it is hard to imagine."

Those aren't actual legal arguments. They are just statements that you don't consider that result to be satisfying in light of what you think a legislative provision was supposed to do. Which is, itself, dangerous ground, because legislative enactments are often a compromise position that neither "side" would have advocated at the outset.

I'd love to see a detailed analysis of the best arguments in favor of the President being a Constitutional "Officer of the United States" that exclude all of the "but it makes no sense [to me]" positions.

[ah....Clem]

"I’d love to see a detailed analysis of the best arguments in favor of the President being a Constitutional “Officer of the United States” ..."

The Colorado Supreme Court's opinion would be the obvious place to read that:
https://d3i6fh83elv35t.cloudfront.net/static/2023/12/23SA300.pdf

Section E, starting with paragraph 127. Happy reading!

[santamonica811]

Much thanks for the link. That court's detailed reasoning was certainly persuasive to me. Overwhelming, even.

Sadly, I suspect that the TDS pro-Trump crowd will remain utterly unconvinced.

[iowantwo]

Still waiting for the constitutional use of officer when referring to President.

[Publius_2020]

The "Officer" question begins at 144.

The first contention is that "office" implies "officer" based on "plain meaning." See: “An interpretation of the Constitution in which the holder of an ‘office’ is not an ‘officer’ seems, at best, strained.” That's nothing more than the "seems right to me" argument.

The second contention is a citation to random references in external sources. That might support a "contemporaneous plain meaning" argument (i.e. it might be duplicative of #1), but it's not especially strong as a matter of statutory construction. You shouldn't really cite an opinion column in WaPo as a basis to interpret an enacted Congressional statute. It's far, far removed from definitive.

And the rest of the argument is "the clear purpose of Section 3," which is just the same "it's clear to me" argument.

As legal argument, this boils down to "I think the word means ___," and "there's two guys who wrote in a newspaper who agree with me." There's not much here.

The strongest argument on the other side flows from the actual usage of the term "Officer of the United States" in the Constitution. Legally, that's a much strong point. Where in the Colorado opinion is there any rebuttal of the "commission" point?

Where do we see a response to the contention that every "officer of the United States" must be commissioned by the President?

[Peter Gerdes]

I don’t think Hansen is factoring in all the implications of having Trump as a client. Even if his lawyers thought that the best argument was to alledge that Jan 6th wasn’t an insurrection or Trump didn’t participate in it doing that in a persuasive fashion likely would have required admissions Trump wouldn’t agree to make.

This argument doesn't require them to either admit Trump lost the election or look like complete fools.