The Problems with Trump’s Opening Brief in the Disqualification Case

An old legal aphorism, popularized in a poem by Carl Sandburg but attested well before his use of it, states something like: “If the law is against you, pound the facts; if the facts are against you, pound the law; if both the facts and the law are against you, pound the table and yell like hell.” Donald Trump’s opening merits brief before the U.S. Supreme Court in Trump v. Anderson spends a great deal of time pounding the table, even though some much better options were available. Trump v. Anderson is the appeal of the Colorado Supreme Court’s decision concluding that Section 3 of the Fourteenth Amendment bars Trump from the primary ballot for having engaged in insurrection after having sworn an oath to support the Constitution. Trump filed his opening brief on the merits, as required by the expedited timeline for this case, on January 18, 2024. In this essay, I will break down the arguments in Trump’s brief, which should shape the rest of this case, and explain why I believe that Trump’s lawyers have done a very poor job of representing their client.

This may not matter, of course; the Supreme Court doesn’t hand out an award for best brief when it decides a case, and sometimes bad lawyering prevails over excellent lawyering. Also, literally dozens of briefs have been filed by amici curiae in support of Trump and in support of neither party, and more will likely be filed in opposition to Trump’s position, so it’s quite likely that better versions of the arguments presented in Trump’s brief will be made in other briefs. Nonetheless, if you’re interested in legal craft and in how the sausage gets sliced up in court, I hope to provide a useful analysis.

Trump’s Lawyers Failed to Tell a Cohesive and Credible Story about the Facts of the Case

After a few formal requirements and a short introduction, Trump’s brief begins with a Statement of the Case, as required by Supreme Court Rule 24(g), and immediately missteps by launching into an overwrought description of the procedural history of this case — how the case has proceeded up to this point. Ordinarily, the Statement contains an argumentative presentation of the facts — indeed, Rule 24(g) specifies that the Statement must “set[] out the facts material to the question presented.” This is the opportunity for counsel to argue the facts to the Supreme Court, to present the evidence introduced below in the best light possible for their client. Framing any court’s understanding of the facts is vital, but it is of particular importance before the Supreme Court, because the Supreme Court is less constrained on the law than a regular court. And the petitioner has the advantage of writing the brief that will almost certainly be the first merits brief read by each justice, and one of the handful that will receive each justice’s full attention.

In this case, you would expect Trump’s lawyers to carefully parse the events of January 6, 2021, arguing that Trump never did anything that could be construed as participating in the storming of the Capitol. Furthermore, they should have described those events in terms that undercut the legal arguments of the other side — describing this as a brief riot, largely by supporters of Trump who were much more radical than Trump or the leadership of the peaceful rally before some but not all of the participants in the rally marched on the Capitol. Good lawyering would also seek to contextualize Trump’s statements using phrases like “fight like hell” in the broader context of political rhetoric, arguing that politicians of every stripe use language like that to exhort their supporters to vote, organize, and otherwise peacefully participate in the political process. They should also have pointed to Trump’s subsequent tweets and public statements to argue that Trump never intended anything like the attack on the Capitol and encouraged his supporters to act peacefully and to obey the law. They also might well have sought to put January 6th in a broader context, arguing that taken as part of Trump’s overall conduct on the campaign trail and in office, nothing he did should be taken as supporting insurrection. I don’t believe any of the facts that his counsel should have argued — Trump’s conduct directly caused the attack on the Capitol on January 6, the purpose of the attack was to prevent Congress from lawfully certifying Biden’s business, by threatening or killing members of Congress or the Vice President if necessary to achieve those goals, and that sort of effort to disregard an election voting the incumbent out of office is a key form of insurrection against the Constitution. But good lawyering is good storytelling, and Trump’s lawyers should have had a story that they wanted to persuade the Court to adopt about what happened on January 6. Yet even when they argue specific facts later, they never take the opportunity to cohesively frame their version of the events and to tell the story of what happened.

Instead, they launch into an extended discussion of the procedural history of this case and of other claims that Section 3 disqualifies Trump without ever really presenting their view of the facts. Trump’s brief laboriously describes the details of Colorado’s election law as applied to presidential primaries and the requirements for proceedings seeking to compel the Colorado Secretary of State to either include or exclude a candidate from a primary ballot. This material isn’t irrelevant — one of their substantive arguments is that the Colorado courts egregiously misinterpreted the requirements of the Colorado statutes in a way that made their actions improperly infringe on the state legislature’s constitutional authority to structure the selection of presidential electors, and some explanation of the procedural history of the case is always necessary. Still, diving into the minutia of Colorado’s election law statutes does nothing to achieve the first goal of any factual argument: convincing the court that justice demands that your client win. Instead, Trump’s brief spends extensive space quoting the district court’s factual findings and the basis of those findings in an effort to critique the lower courts’ fact-finding process, rather than actually arguing what the trial court should have concluded in its findings. The brief spends an astounding 14 pages (out of 59 total, including the front cover of the brief) discussing the details of the procedural history without ever actually telling the Court what Trump’s version of the facts are. Instead, the brief seeks to create the conclusion that the process below was so procedurally deficient that it poisons all the facts found — even though that’s only relevant to one of Trump’s five arguments for why the Supreme Court should reverse, and an argument that would not even accomplish all of Trump’s strategic goals before the Court.

The brief does not improve as it moves on to its legal arguments. Trump’s brief makes five arguments, each of which would be sufficient if accepted by the Supreme Court to justify reversing the Colorado Supreme Court. First, Trump argues that the President is not an “officer of the United States” and is thus entirely outside the scope of Section 3. Second, Trump argues that nothing he did on January 6 constitutes engaging in insurrection, in part because he argues that the First Amendment protects his speech. Third, he argues that Section 3 should be enforced only through mechanisms created by Congress. Fourth, Trump argues that even if Section 3 renders him ineligible to hold the office of President, it can’t be used to bar him from appearing on the ballot. Finally, he argues that the Colorado Supreme Court’s interpretation of the Colorado election code was so egregiously wrong that it violates the clause of the Constitution that gives state legislatures the authority to determine how electors are chosen.

The choice of which arguments to make in this brief is interesting for two reasons. First, from the perspective of interested observers, the choice of issues to argue has interest because arguments not made by a party are generally waived, so this brief finally limits the scope of this appeal to a manageable number of arguments. This isn’t quite definitive — some issues, mostly about the scope of the jurisdiction of the courts, can’t be waived. But nonetheless, this almost certainly defines the contours of the rest of the arguments before the Supreme Court (something that should have been done in the Questions Presented part of the cert petition and grant of cert). The only particularly interesting argument abandoned at this point is a prudential one arguing that Section 3 should be treated as a political question, although Trump makes a somewhat similar argument in arguing that Section 3 should only be enforced through mechanisms created by Congress. Nonetheless, even the blunderbuss approach of this brief is somewhat more narrow than prior arguments.

The second perspective is a strategic one. Conventional wisdom correctly states that if a party has good arguments and bad arguments, making the bad arguments costs credibility and undermines the good arguments. Furthermore, even if it’s worth presenting some weaker arguments to avoid waiving those arguments— perhaps a specific justice will be persuaded by them even though they are weaker, or perhaps a party wants to preserve those arguments that will be primarily argued by an amicus— the structure of a brief should focus on and highlight the good arguments, presenting the weaker arguments quickly and in less prominent positions structurally. Trump’s brief is a disaster from this perspective.

Argument 1: The Absurd Claim that the President Is Not an Officer of the United States

The first and most prominent argument Trump makes is that the President of the United States is not an officer of the United States. While there’s a certain logic to presenting this argument first — it is in a sense a question that comes before the question of whether Trump engaged in insurrection — it’s also an embarrassingly bad argument. Trump’s lawyers do a decent job of mustering arguments for why “officer of the United States” should be understood as a technical term in the context of the Constitution that excludes the President. However, they fail to meet the argument that the Colorado Supreme Court adopted that the plain meaning of the words, as understood by ordinary people at the time of the adoption of the Fourteenth Amendment, clearly includes the President within the scope of the phrase “officer of the United States.”

Moreover, while they present some decent arguments about why the President is not included, they fail to draw the teeth of their opponents’ best arguments. When you know what your opponent will argue, and that their argument has bite, you don’t want to wait to respond to it in the reply. Instead, you want to present that argument in its least damaging form and rebut it before your opponent ever gets a chance to present it in the best form. That way, when the Court reads the argument in the main brief in opposition, it will think, “right, I already understand why this argument is wrong and should be discounted.” And yet there’s no real effort to argue why a technical, “this is what it means in the Constitution,” reading should be preferred to a more natural plain English interpretation in this case. Likewise, there’s little attempt to engage with the legislative history of the Fourteenth Amendment, and no effort to deal with one of the most problematic pieces of legislative history from Trump’s perspective. One Senator asked why the President wasn’t included in Section 3; another responded that the President is included, within the general scope of the term officers of the United States. That quotation has shown up in every argument the Anderson respondents have made about the meaning of Section 3, and was cited by the Colorado Supreme Court. Trump’s lawyers should have made an argument for why this wasn’t particularly important, perhaps by talking about other legislative history that cuts in the other direction or saying that two Senators’ understanding of Section 3 doesn’t control over the consistent usage of terms elsewhere in the Constitution. Instead, they leave themselves open to the Anderson respondents presenting this as a convincing answer to Trump’s arguments.

But the broader point is simply that, notwithstanding their careful parsing of other provisions in the main body of the Constitution, the argument that the President is uniquely not covered by Section 3 is highly unpersuasive. I doubt that I would have wanted to leave it out entirely were I somehow in their position — after all, the Colorado district court accepted this argument, albeit in a context where the judge explicitly stated that she was adopting the argument out of motivated reasoning to try to find a way to avoid striking Trump off the ballot. A similar bit of motivated reasoning might be enough to pick up at least one justice’s vote. But I would have put the argument towards the back of the brief, and leave it to some amicus to make a complete presentation of the argument. By leading with this argument, and by giving it 14 out of 40 pages of argument, Trump’s lawyers indicate to the justices that they think this is their best argument. Because the argument is highly unconvincing — and even more so because the argument is so lawyerly in advocating an arcane meaning different from the ordinary meaning of the words that the Supreme Court would make itself appear politically motivated and representing the worst weaseliness associated with lawyers if it adopted this argument — Trump’s lawyers make their whole case seem weak by giving this argument pride of place and the greatest focus.

Argument 2: The Claim that Trump’s Conduct Was Not “Engaging in Insurrection”

Instead, Trump’s lawyers should have led with their second argument: that Trump never engaged in insurrection. Because of their failure to include a proper fact section in the Statement, their presentation of this argument is something of a muddled mess. They should have made their factual arguments clearly and in a well-defined fact section, supported by citations to the record, and then devoted this section to laying out what the law regarding “engaging in insurrection” is and applying it to the facts of this case. Instead, they intersperse factual arguments with legal arguments in an unclear way. This is also another example of Trump’s lawyers choosing to “pound on the table” when they could be making their argument more strongly by using more measured language. To hear them describe it, “nothing that President Trump did in response to the 2020 election or
on January 6, 2021, even remotely qualifies as ‘insurrection.’” Trump Opening Brief at 33. But they didn’t need to argue that it doesn’t “even remotely” qualify — even if it went up to the line without crossing it, they would prevail. By using hyperbole to attempt to make this case seem ridiculous, they weaken their own arguments — especially when both the district court and the Colorado Supreme Court found against them on these very issues. A much better approach would be to construct a legal argument for why the term “insurrection” should be given a narrow interpretation, and why the term “engaged in” should require either direct action or unambiguous language inciting insurrection. Then, having presented the facts in the best light for Trump in the Statement, including pulling the teeth of the other sides best factual arguments, they could argue that because the Colorado Supreme Court applied the wrong understanding of the scope of the phrase “engaged in insurrection,” its application of the law to the facts is wrong (thus avoiding the uphill climb of asking the Supreme Court to reverse factual findings made by a trial court and upheld on appeal to a lower appellate court). Much of this section is instead factual argument, even though that should have been made earlier and more clearly. As best as I can tell, Trump’s lawyers never attempt to actually define the legal contours of “engage in insurrection,” particularly with regard to incitement. They argue that Trump’s speech can’t qualify as incitement under Brandenburg v. Ohio, a leading Supreme Court case on the First Amendment. But are they conceding that any speech that could be legally classified as incitement under Brandenburg would qualify as inciting (and thus engaging in) insurrection? Totally unclear. Moreover, there is a substantial body of law interpreting and applying Brandenburg. Instead of addressing some of that case law, and carefully showing how the facts in this case are, according to Trump’s view, less like incitement than in some of those other cases, they simply quote the bare language of Brandenburg’s holding and assert that it doesn’t apply in this case.

To my mind, this general argument is one of the most plausible ways that Trump could get his full strategic goal out of the Supreme Court: an unambiguous ruling, on the merits, that Trump’s conduct on and around January 6 was not “engaging in insurrection.” Trump’s lawyers should have led with this, and given it more space, nuance, and detail, instead of giving most of their attention to the much weaker claim that Section 3 doesn’t apply to the Presidency or former Presidents at all, and thus suggesting that their arguments about whether Trump engaged in insurrection are weaker. Also, to the extent that the Supreme Court concludes that Trump did engage in insurrection, they will feel strong pressure to honor the plain language of Section 3 and defend the U.S. Constitution and the democratic system of government. The Supreme Court justices are well aware of the extensive news coverage of Trump’s fascistic statements and the concerns that a hypothetical second Trump Administration might disregard core constitutional protections. Trump’s lawyers should therefore have made their first priority persuading the Supreme Court that Trump is not an insurrectionist and had no responsibility for January 6th. That’s an uphill climb — it’s fairly apparent, and a majority of both Houses of Congress concluded, that Trump directly caused the assault on the Capitol. But it still should have been a priority for Trump’s lawyers to take on directly.

Argument 3: The Claim that Section 3 Should Be Enforced Only Through Congressional Enactments

Trump’s third argument is the other not-terrible argument, that Section 3 should only be enforced through the means specified by Congress. This is one of the few areas where I have any praise for the lawyering in this brief. In most of the litigation up to this point, and in the decisions of several state courts, this was treated as primarily a matter of the “political question” doctrine and secondarily as a question of whether Section 3 is “self-executing.” Both of those perspectives on this issue have serious problems. With regard to the political question line of arguments, one of the core questions is whether manageable judicial standards exist. Answering a factual question like “did person A commit act B?” is precisely what courts excel at doing. Furthermore, following the Maine Secretary of State’s decision that Trump could not be listed on the ballot, a conclusion that the courts can’t address these questions would not achieve Trump’s goals — if this is a political question, then the Maine Secretary of State is an appropriate political actor to answer it. Instead, Trump wants the courts to order entities like the Maine Secretary of State to treat him as eligible. That’s an outcome that’s very hard to reach under political question doctrine. Arguments about whether Section 3 is self-executing are less strategically flawed from Trump’s perspective, but have to either deal with the issue of whether they would also argue that the rest of the Fourteenth Amendment is self-executing, not to mention the Thirteenth Amendment (banning slavery) and Fifteenth Amendment (guaranteeing the right to vote regardless of race), which have parallel language. Neither approach is terribly persuasive. While Trump clearly argues that Section 3 is not self-executing, citing an immediately post-enactment decision, Trump then argues that in response to that decision, Congress has established a means to enforce Section 3 — the Insurrection Act, 18 U.S.C. Sec. 2383 — and that this should be understood as the only means to enforce Section 3 without additional Congressional action. I think Trump’s heavy emphasis on Griffin’s Case, a hoary old decision by Chief Justice Chase sitting as a circuit court justice that held that official acts taken by an individual who should have been barred by Section 3 can still have legal effect because Section 3 needs to be enforced by Congressional action and is not self-executing, is a strategic error. While the Supreme Court may find it persuasive, it is in no way bound by that opinion, and the context is very different from a question of whether a candidate is eligible to stand in an election. This also puts Trump in the weaker posture of focusing on whether Section 3 is self-executing. Instead, Trump would have been better off making the argument that Congress has covered the field with its legislation enforcing Section 3, and action by the states to enforce Section 3 in other ways is pre-empted; they could then have argued that Griffin’s Case’s holding can be harmonized with that understanding and is reflected in Congressional action after Griffin’s Case, without being wedded to an argument that seems to imply that slavery would still be legal after the Thirteenth Amendment in the absence of Congressional action. However, I think they still deserve some credit for presenting the stronger version of this argument at all, even if they put it alongside a weaker version. I had not seen Trump’s lawyers successfully articulate the stronger version at all until this brief. I’m still not persuaded — but in a brief filled with arguments that lawyers should feel ashamed to make, this argument is at least respectable.

Argument 4: The Ridiculous Claim that Candidates Can Have a Right to Be on the Ballot despite Being Ineligible to Serve

Speaking of arguments that bring shame and disrepute on the lawyers who made it, Trump’s fourth argument, that even if he is barred from holding the office of President, he still has a right to appear on the ballot, in part because Congress could theoretically lift that disability, is a stinker that should have been omitted in its entirety. It beggars belief to think that there is a right to stand as a candidate for office even though a candidate is ineligible to serve. And indeed, courts have routinely upheld administrative actions barring people who are ineligible to become President because of the requirement that the President be a natural-born citizen or that the President be at least thirty-five. The fact that the Vice-President-elect could serve as President if the President were ineligible does nothing to change this — virtually no one, and likely not a single justice, would accept that Barack Obama could run for President today with Biden as his running mate, and then upon election Biden would serve because Obama is not eligible after serving two whole terms. This argument also doesn’t accomplish Trump’s full strategic goal before the Supreme Court, because it would leave open the question of whether he is eligible to serve. Trump wants (and his lawyers correctly say in this brief that he wants) the Supreme Court to settle the issue of whether Section 3 disqualifies him. That means that he’s giving up substantial credibility, making a ridiculous argument, to try to get a result that is only half of what he wants anyway.

Trump’s lawyers do cleverly try to analogize the bar in Section 3 to residency requirements — arguing that just as residency requirements need to be enforced as of the time a candidate takes office, not at the time of the election, because a candidate could move into the required area after the election, Section 3 needs to be enforced if at all only at the time of taking office, because Congress could remove any disability by a two-thirds vote of both Houses. While clever, this argument both proves too much and is detached from reality. If that were correct, why couldn’t a similar argument be made about the limitation on two-terms or the age requirement or natural-born citizen requirement? Yes, amending the Constitution is more onerous than a two-thirds vote requirement in both Houses, but it’s equally theoretically possible and could happen on the same time scale. Moreover, it’s obvious to any observer that if Trump had any chance of meeting that two-thirds vote requirement, Congress would be acting now to resolve the issue. Trump wouldn’t even be able to get every Republican Senator to vote to remove any disability under Section 3 — several sitting Republican Senators voted to convict him in the impeachment trial about January 6th. He wouldn’t get even a simple majority in the Senate, and the Court is well aware of that.

In addition to the general foolishness of this argument, it has an extra problem in terms of counting to five, the minimum goal in any Supreme Court case. While a circuit judge, Justice Gorsuch wrote an opinion upholding a decision by the Colorado Supreme Court preventing a naturalized citizen from appearing on a presidential ballot. Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012). Indeed, at the time, he thought that it was clear enough that there was no right for ineligible candidates to appear on the ballot, when weighed against the government interest in “protecting the integrity and practical functioning of the political process,” that the case did not need oral argument or the publication of a binding precedent in the Federal Reporter (as opposed to the Federal Appendix, which contains rulings that are only binding on the case in which they were decided). Trump’s lawyers are well-aware of this decision; not only was it cited by the Colorado Supreme Court in this case, but one of his lawyers on this brief was the Colorado Secretary of State at the time of that opinion and was a party to that case. Making an argument that is unlikely to persuade any of the justices, and is likely to be viewed as without any merit by Justice Gorsuch in particular, is a foolish decision. It reduces their credibility and ability to persuade at least Justice Gorsuch on other issues, and while they don’t strictly need Justice Gorsuch’s vote to prevail (a line-up of Roberts, Thomas, Alito, Kavanaugh, and Barrett is plausible), losing Gorsuch would make it much more likely that they would lose overall. I would be amazed if this argument persuaded anyone, while I could easily see it making Justice Gorsuch in particular more likely to hold against Trump. Including it is simply a tactical mistake.

Argument 5: The Claim that the Colorado Courts Violated State Law

Trump’s final argument is the only one about which the enormously detailed procedural history is relevant: Trump argues that the Colorado courts violated Colorado election law so badly, by disregarding certain time limits in the special procedure that began this whole litigation, that they violated the U.S. Constitution by infringing the prerogatives of the Colorado legislature. This is a very difficult argument to make. To begin with, this fundamentally looks like an evaluation of a state law issue. While Trump’s lawyers argue that there is “no federal statute or constitutional provision that bans [the United States Supreme] Court from reviewing state-law questions,” Trump Opening Brief at 49, basic principles of federalism and the federal system establish that state supreme court interpretations of state-law questions are final. One of the standard reasons for denying cert or affirming a decision from a state court, even a decision that includes an incorrect analysis of federal law, is that the decision is compelled by an “independent and adequate state law ground.” It is standard black-letter law in the field of federal courts and the federal system that state supreme courts are the final arbiters of state law, with the Supreme Court powerless to overturn their decisions — this is usually understood as a jurisdictional limit (i.e. a limit on the Supreme Court’s power to adjudicate a case at all) and usually thought of as a constitutional limit. The expansive language that Trump’s lawyers use to suggest that the Supreme Court can at will wade into a state law question makes this whole argument seem almost frivolous.

The Supreme Court has identified a narrow exception to this principle, essentially to cover cases where a state court goes rogue and decides to interpret state law in a patently lawless way. Chief Justice Rehnquist’s concurrence in Bush v. Gore (not a case that justices who care about the Court’s legitimacy should rely on to much) suggests that as a basis for reversing the Florida Supreme Court — essentially suggesting that if a state court disregards clear law to reach a specific result it can violate due process. Some recent election law cases have suggested that if a state court obviously disregarded the legislature’s intent with regard to election law it could violate the allocation of authority over federal elections to state legislatures. So despite the generally clear principle that questions of whether state procedural requirements were adequately followed should be a purely state law matter, there is a little room to make this argument.

Nonetheless, the likelihood of success on this ground is very low, and making this argument mostly makes the rest of Trump’s arguments seem bad by association. Furthermore, like with the previous argument, even if Trump prevailed, it might be a pyrrhic victory. If the Supreme Court reversed the Colorado Supreme Court on the ground that by failing to meet the timing requirements of the statute the district court exceeded its authority, nothing would prevent a party (even the same plaintiffs) from bringing a new claim and using the extensive record and appellate review from this case to prevail on that claim. Trump might well win the right to appear in the primary only for a new claim to bar him from appearing on the general election ballot. The case would then make it back to the Supreme Court, but without this argument as a possibility to avoid reaching the merits of the Section 3 claim. When the argument undermines Trump’s lawyers credibility, and wouldn’t even accomplish Trump’s goals if it succeeded, it should never have been in the brief at all. That’s particularly true because even justices who might be sympathetic to these sorts of arguments are more likely to decide this case on a different ground, becaus at least the questions of whether Trump engaged in insurrection and whether Congress’s enforcement mechanisms for Section 3 are the exclusive remedies are much more plausible and less likely to generate serious criticism of the Court.

Conclusion

I hope this critique of the surprisingly poor lawyering displayed in Trump’s brief has interested and informed you. Again, I want to be clear that a case before the Supreme Court can easily be decided in favor of a side that was badly represented, if the Court itself is sympathetic to the facts and law at issue in the case. That Trump’s lawyers have done a poor job briefing this case only has a small effect on the likelihood that he will prevail. However, to the extent that the quality of the arguments does end up swaying the Court, Trump’s lawyers have done him no favors.