A Few Lessons from the Briefing in Trump v. Anderson, the Ballot Eligibility Case before the Supreme Court

Not just appellate eyes, but the eyes of the country, are likely to be trained on the Supreme Court on February 8, when the justices will hear Trump v. Anderson, the case from the Colorado Supreme Court that held former President Trump ineligible under the Fourteenth Amendment’s Section Three to be placed on the Colorado Republican Primary Ballot because of his actions in connection with the infamous January 6 assault on the Capitol as electoral votes were being counted in 2021.

The Petitioners’ briefs, along with their amici, were filed by January 18. Although the Respondent’s Brief was filed January 26, supporting amicus briefs are not due until January 31. In full disclosure, I am filing one on behalf of Professor Kermit Roosevelt of the University of Pennsylvania’s law school.

The briefs filed revealed interesting strategic choices and provide instructive examples of how to use the same  historical examples, same words spoken during the congressional and ratification debates, and same precedents to opposing effects.

For this post, I want to primarily focus on choices made by the advocates. As every appellate advocate knows, it is prudent to put your best argument first. If that argument is weak, it has an adverse effect on the subsequent arguments. So how did the parties open their briefs?

Trump’s brief begins with the argument that the “president is not an ‘officer of the

United States.’” If the Court accepts that view, the case is over. That might seem to make it a good choice as an opening argument. Yet, the Colorado Supreme Court treated it as an extraordinarily weak one. That court found it impossible to believe that those who framed the Fourteenth Amendment were determined to assure that minor officeholders did not return to their minor offices, but that it was of no concern that the most powerful figure in American government could violate an oath to the Constitution in precisely the same manner and still regain that office.

To explain more fully, Section Three of the Fourteenth Amendment disqualifies those have “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.” The essence of disqualification, then, is that breaking an oath to support the Constitution disqualifies a person from office.

The argument his lawyers posit is that Trump can only be ineligible if the president qualifies as an “officer of the United States.” Members of Congress are mentioned, as well as other elected officials, but those not specified must be deemed “officers of the United States.” The brief argues that the term is a constitutional word of art that only applies to people the president appoints to office or commissions, as in the military – and the president cannot appoint or commission himself to an office.

In making the argument, Trump’s lawyers seek to appeal to the same justices who have were in the majority in decisions that cut back on the administrative state. In these modern precedents that found fault with the lack of accountability for independent agencies because their leaders could not be fired by the president, the Court has referred to “officers of the United States” as appointees, rather than as elected officials. Leading with this argument is a bid to use those precedents for another purpose, which is why it leads and takes up considerable real estate in the brief.

The Colorado State Republican Central Committee (CSRCC), another party on the same side as Trump, also begins its brief with this argument, apparently having made the same calculation. It, however, adds an additional twist. It argues that the president oath of office, which is prescribed by the Constitution, and requires a pledge to “preserve, protect and defend the Constitution of the United States,” cannot have the same consequences as breaking an oath to support the Constitution. The difference between preserve, protect and defend and support seems like the proverbial distinction without a difference, but the CSRCC contends that it ties back to the fact that the oath-breaking that disables only a person who is an “officer of the United States.” As slim a reed as this is to hang upon, the CSRCC attempts to support its argument by making a concession. If Trump had served as a senator, representative, or governor before he became president, the result in this case could be different because those oaths trigger for Section Three’s application. But because he never held public office beforehand, the presidential oath is not one that gives rise to ineligibility. It remains to be seen if anyone salutes that flag.

The Respondents made several strategic choices in response. Just as the opening briefs should start with an advocate’s strongest points, the responsive brief should as well, rather than simply adopt the order of an opponent. It should be noted that there will be no reply briefs. Their first choice was to review the extensive evidence introduced at trial on why Trump’s conduct qualifies as fomenting an insurrection. (Trump’s brief follows his first point with an argument that he did not engage in insurrection, relying on his counterevidence.).

The choice to begin with the events of January 6 and Trump’s actions remind the justices of how serious the attack was that day and what it sought to accomplish, events and intentions that may have faded during the subsequent three years. The Respondents also intersperse color photographs from that day, enabling the justices to recall the seriousness of the attack.

Then, having established the factual predicate, the Respondents proceed to argue that an “insurrectionist president” is ineligible under Section Three. The use of that term, “insurrectionist president” is a calculated one. It establishes the abstract proposition that the Framers of the Fourteenth Amendment could not have intended that the presidency was available for someone of that ilk. Indeed, much of the debate around this provision had various members of Congress expounding on how it would keep the Confederacy’s Jefferson Davis out of the presidency. The Respondents also remind the Court that the presidency is referred to as an “office” in the Constitution 20 times, so that office or officer need not be an exclusionary term.

It suffices to say that both sides have employed appellate advocacy tactics that this blog has discussed many times. I plan to be in the courtroom February 8 to see how those techniques are deployed during oral argument.