Trump's Lawyer Leads With His Chin But Likely Wins Anyway

As I noted on Wednesday, in order for Donald Trump to secure reversal of the Colorado Supreme Court's ruling that he is ineligible for the state's ballot in the Republican Presidential primary, he needs to win on only one of a kitchen sink full of contentions. An advocate for Trump would ordinarily proffer them in the order of strongest to weakest. Thus, I was a bit surprised that his attorney Jonathan Mitchell opened yesterday's oral argument by reciting what I regard as one of Trump's weakest objections: the claim that the President is not "an officer of the United States" within the meaning of Section 3 of the 14th Amendment.

You don't have to take my word for it that this is as bad an argument as it appears to be. Look at what Mitchell himself acknowledged under questioning from Justice Kagan, who asked why on Earth the framers of the 14th Amendment would formulate a rule that says that "the only people who have engaged in insurrection who are not disqualified from office are presidents who have not held office before?" (Every President before Trump previously held a different government office that required taking a qualifying oath, so this exemption applies uniquely to Trump, at least thus far.)

In response, Mitchell said: "Yeah. I don't think there is a good rationale given that this was compromise legislation." (The reference to "compromise legislation" was misleading blather; it's not as though there were competing factions in the Reconstruction Congress who alternately favored or opposed making Section 3 applicable to potential future insurrectionist Presidents who entered the office wholly unprepared for the position because they never previously held public office.)

Let that sink in for a moment. Mitchell thought his best argument--the one that he would lead with--relies on a reading of a text that makes no practical sense. And not even because the plain language of the text commands the nonsensical reading. On the contrary, the most natural reading of "officer of the United States" includes the President. Rather, Mitchell's "President is not an officer of the United States" gambit relies on a hyper-formalistic version of what Professor Akhil Amar has called intra-textualism that renders the Constitution a kind of secret decoder ring. I'll explain in a follow-up essay (likely on Verdict next week) why the version of intratextualism upon which Trump's legal team relies is bonkers.

Nonetheless, I acknowledge that, despite leading with his chin, Mitchell will almost surely win for his client. If I had to bet, I'd say that SCOTUS will reverse the Colorado Supreme Court on some ground having to do with the limits on state court enforcement of Section 3, because that issue seemed to generate concern among the largest number of Justices.

To say that Trump will win is not, of course, to say that he should win. Mitchell's second move was problematic too. Relying on an argument set out most forcefully in an amicus brief, Mitchell sought to distinguish state ballot eligibility determinations based on Section 3 of the 14th Amendment from state ballot eligibility determinations based on other constitutional provisions. The key move was to distinguish curable from non-curable defects. A state can keep a 22-year-old off the ballot, the argument goes, because a 22-year-old cannot become eligible by Inauguration Day. The same goes for someone who is not a natural born citizen. However, a state cannot keep a 34-year-old who will turn 35 in December off the ballot, nor can a state keep off someone running for Congress who is not yet "an inhabitant of the state" but could become one in time.

To be clear, the Supreme Court has not previously ruled on those particulars, but even assuming that's all correct, there's a further gigantic leap made by the amicus brief and Mitchell during the oral argument: they say that Trump is like the 34-year-old because Congress could, before he would take office for his second term if he wins the general election, have his disability removed by a 2/3 vote of each house of Congress.

But that claim proves too much. Under that logic, a state cannot enforce any constitutional requirements for eligibility via the ballot, because any disability could be removed by the time of Inauguration Day. Congress by a 2/3 vote could propose a constitutional amendment repealing the natural-born-citizenship requirement or lowering the age of eligibility to 18, and before Inauguration Day, 3/4 of the states could ratify the amendment.

Aha, you say, but a constitutional amendment would be extremely unlikely. To which I say: Duh. That's my point. A 2/3 vote of each house of Congress rendering Trump or any other insurrectionist eligible for office is also extremely unlikely. For all practical purposes, then, disqualification for insurrectionists is (or should be) indistinguishable from disqualification for 22-year-olds and persons who aren't natural born citizens--well within the traditional powers of states.

I now come to what I regard as the best point made by Mitchell and the Justices who expressed sympathy for his position: the Colorado Supreme Court disqualified Trump based on evidence and factual findings by a Colorado trial court; a different state high court could reach different conclusions based on different evidence and different evidentiary rules; each ruling would be entitled to the deference afforded trial court factual findings; this would lead to either inconsistent results on an important federal question or the fortuity of giving effect to whatever judgment came first.

That is indeed a genuine concern. But here's the thing: it's also a genuine concern in a wide range of other cases in which the Supreme Court makes law based on so-called "legislative facts," i.e., facts about the state of the world that inform how to construe the law, rather than facts that relate just to one particular case. And far from having done anything about the well-known problem of legislative facts, the Court's recent turn to (tendentious renderings of) history has exacerbated the problem--as I explained here.

Given the Justices' willingness in other settings to duck the legislative fact problem and, worse, to approach it inconsistently depending on their ideological druthers, it would be more than a bit opportunistic for them to reverse the Colorado Supreme Court based on the sudden discovery of the possibility of inconsistent judgments. But given how much worse the other grounds for reversing are, this one seems the most likely choice for a Court determined to leave it to the voters to choose to end democracy.