A User’s Guide to Trump v. Anderson, Addendum I: A Few Reflections on the Oral Argument

Marty Lederman

 This post and the next are follow-ups to my collection of posts on Trump v. Anderson, to account for things that arose at oral argument last Thursday.  

In this post, I’ll address four things:  

(i) The unusual and, in some respects, questionable strategies of Trump’s counsel, Jonathan Mitchell at the oral argument; 

(ii) the Chief Justice’s question about why Congress repealed its 1870-enacted enforcement mechanisms in the Twentieth Century; 

(iii) Justice Gorsuch’s questions about the source of a state’s power to exclude insurrectionists from a ballot in a federal election; and 

(iv) some relatively unimportant points about Stuart v. Laird, which Mitchell invoked in his argument.

In my next post, I’ll address the most important issue emerging from oral argument—namely, the Justices’ concern that there’s something constitutionally troubling about states using their election ballots to in some sense “enforce” Section 3 of the Fourteenth Amendment with respect to prospective federal officers (the President, in particular)—in contrast to states enforcing Section 3 to prevent insurrectionists from holding state office, a practice that at least some Justices appeared to want to preserve. 

As I’ve explained in my series of posts, Trump’s briefs have made or (arguably) preserved at least ten different grounds for overruling the decision of the Colorado Supreme Court:

i.  That Trump isn’t covered by Section 3 because the President is not an “officer of the United             States” and because Trump (and he alone among all Presidents and Vice Presidents) never served in another covered state or federal office. 

ii.  That the presidency isn’t a covered “office under the United States” that rebels and insurrectionists are disqualified from holding.

iii.  That the January 6, 2021 violence at the Capitol wasn’t an “insurrection.”

iv.  That, even if it was an insurrection, Trump didn’t engage in it because he lacked the intent to incite his followers to use violence in their protest at the Capitol. 

v.  That, even if Trump did incite an insurrection (or aided and abetted it), that still doesn’t amount to “engaging in” it.

vi.  The “Griffin’s Case” argument that Section 3 can only be enforced pursuant to a congressionally enacted statute (or, presumably, in a manner the Constitution itself authorizes, e.g., impeachment, or a House of Congress prohibiting an insurrectionist from sitting).

vii.  That Congress has, in a series of enactments between 1870 and 1948, “precluded” states from enforcing Section 3 at all (the so-called “Sea Clammers analogy” argument).

viii.  That Colorado’s proposed removal of Trump from its presidential primary ballot effectively imposed an “extraconstitutional condition” on his serving in office, allegedly in violation of U.S. Term Limits v. Thornton, because two-thirds of both Houses of Congress might still vote to remove the Section 3 disqualification for Trump if he’s elected.

ix.  That the Colorado Supreme Court misconstrued a Colorado statute in a way that impermissibly deviated from what the Colorado legislature prescribed for the “manner” of choosing presidential electors.

x.  That the exclusion of Trump’s name from the primary ballot would violate the constitutional voting rights of Colorado Trump supporters and/or the First Amendment rights of association of the Republican Party.

In his opening statement on Thursday, Trump’s counsel Jonathan Mitchell chose to mention only two of these arguments—Nos. (i) and (viii) above—presumably because he’d decided that they were his strongest arguments and the best bets for securing five or more votes.

Yet when Justices probed at the obvious, glaring weaknesses of each of those two arguments, Mitchell had no satisfactory responses, and so those arguments were nonstarters right out of the box (or so it seemed to me, anyway—one can never be sure of such things). 

a.  Mitchell’s lead argument, to which he devoted far more pages in his briefs than any other, was that although Donald Trump served as “the President of the United States of America,” Art. II, § 1, cl. 1; and although he was an officer in that capacity; and although the office for which he took his oath was “the Office of President of the United States,” Art. II, § 1, cl. 8; nevertheless the President is not an “officer of the United States,” and that therefore Donald Trump (who never served in another qualifying state or federal office) is singularly exempt from Section 3 and may serve in a covered office even if he engages in a rebellion against the United States or gives aid and comfort to its enemies in time of war.  

Merely to describe this argument is to refute it.  Indeed, to call it a “too clever by half … cabalistic overreading” (see Michael Dorf, quoting Akhil Amar) might, if anything, give it too much credit.  There is no evidence that anyone at the time of the drafting, approval and ratification of the Fourteenth Amendment had the slightest inkling that the use of the phrase “office of the United States” would not cover a traitorous or insurrectionist President or Vice President.  Mitchell’s construction of that term, in other words, is the furthest thing from the “original public meaning.”  It would be an embarrassment for the Supreme Court to endorse that deeply implausible reading as the basis for immunizing Trump from the effects of Section 3.

Not surprisingly, then, the Justices didn’t ask any questions about the argument until well into Mitchell’s argument.  Finally, hallway through the seriatim questioning, Justice Kagan asked Mitchell the looming question he must have been anticipating—namely, why in the world would the framers of the Fourteenth Amendment have included such a loophole?  “We should ask,” she said, “‘Is that rule a sensible one?’”  “If [the framers] had thought about it, what reason would they have given for that rule?  And it does seem as though … there's no particular reason, and you can think of lots of reasons for the contrary.”  Kagan put the point to Mitchell bluntly:  “To say that the only people who have engaged in insurrection who are not disqualified from office are presidents who have not held high office before:  Why would that rule exist?”  

To which Mitchell’s answer—the one that he must have decided, after several moots, was the best answer to that inevitable question!—was “Yeah. I don't think there is a good rationale.”  “[I]t does seem odd,” he conceded, “that President Trump would fall through the cracks in a sense,” but it “was compromise legislation,” and “[i]n a compromise, everyone goes away miserable.”

I think it’s evident why the Court won't endorse such a “miserable” reading of Section 3—the existence of which can’t be explained and that no legislator (or ratifier) would have proposed or accepted, even as part of “compromise” legislation.

The mystery is why Mitchell believed that his best argument was one for which there is no “good rationale.”

b.  The only other one of his many arguments that Mitchell articulated in his opening—and to which he returned in his rebuttal—was No. (viii) above, i.e., that Colorado’s proposed removal of Trump from its presidential primary ballot effectively imposed an “extraconstitutional condition” on his serving in office, allegedly in violation of U.S. Term Limits v. Thornton, because two-thirds of both Houses of Congress might still vote to absolve Trump of his disqualification for engaging in an insurrection.

As I explained in an earlier post, there are several serious problems with this argument.  For starters, Term Limits only prohibits a state from imposing a ballot-access restriction if it’s both designed (intended) to effect an extraconstitutional condition on serving in office and is “likely” to have such an effect—and neither condition is met here.  Moreover, even if Colorado’s intent were to try to impose a condition on Trump’s service, obviously that condition would be that he not be Section-3-disqualified to serve on January 20, 2025, rather than that (as Mitchell would have it) that he’d be disqualified from taking office as of March 5, 2024 (the date of the Colorado primary).  

In addition (this is a point I failed to make in my earlier post), the rationale and rule of Term Limits might not even apply to a state’s manner of appointing presidential electors (as opposed to the manner in which it elects members of the House).  Indeed, that’s the upshot of the Court’s later decision in Chiafalo, in which the Court held that Article II, § 1 affords a state broad authority to prescribe the presidential candidates for which its electors must or must not vote.  See 140 S. Ct. at 2330-31 (Thomas, J., concurring in the judgment) (“The Court interprets the term ‘Manner’ in Article II, § 1, to include the power to impose conditions or qualifications on the appointment of [presidential] electors.”); Term Limits, 514 U.S. at 864 (Thomas, J., dissenting) (“it is uncontested that the States enjoy the reserved power to specify qualifications for the Presidential electors who are chosen pursuant to this Clause”); see also id. at 861-62 (“[W]e have long understood that [states] have the power (as far as the Federal Constitution is concerned) to set qualifications for their Presidential electors … .  Even respondents do not dispute that the States may establish qualifications for their delegates to the electoral college, as long as those qualifications pass muster under other constitutional provisions (primarily the First and Fourteenth Amendments).”).^[1]

Besides all of those problems, Mitchell’s “new qualifications” argument runs into a more decisive obstacle right at the outset—namely, that there’s no way on Earth that 290+ members of the House and more than 66 Senators would ever vote to “remove” Trump’s “disability” to serve (quoting Section 3).  After all, strong majorities of both chambers already voted to disqualify him from serving because, inter alia, Section 3 requires it.

Nevertheless, Mitchell insisted on emphasizing this argument, even as applied to the Chief Justice’s hypothetical of a person who acknowledges that he’s covered by Section 3 and engaged in an insurrection:  “If a state banned even an admitted insurrectionist from the ballot, it would be adding to and altering the Constitution's qualifications for office because, under Section 3, the candidate need only qualify during the time the candidate holds the office to which he's been elected.  And under Your Honor's hypothetical, the secretary of state would be demanding essentially that the candidate obtain a waiver from Congress earlier than the candidate needs to obtain that waiver.”  

To which the Chief Justice naturally responded, with (at least as I heard it) a good degree of incredulity:  “Well, that's a pretty unlikely scenario.”  

Yes, it is.  And therefore the Court isn’t going to issue a ruling that depends upon the theoretical possibility of a supermajority-of-both-Houses “Trump waiver,” any more than it’s going to rule that the President of the United States is an officer but is not an officer “of the United States.”

So much for the two arguments that Mitchell considered to be his best.  I agree that the Court is likely to rule for his client, but I’d be very surprised if it does so on either of those two grounds.

The other rather remarkable thing about Mitchell’s oral argument was how often he candidly expressed skepticism about other arguments that he had (barely) preserved in his briefs, even when it appeared that one or more Justices might embrace them.  

Justice Kavanaugh, for example, appeared inclined to the view that Chief Justice Chase’s rationale in Griffin’s Case might have reflected an original understanding that Section 3 can’t be enforced absent statutory authorization (Argument No. vi, above, which Mitchell barely mentioned in his briefs).  Mitchell responded by discouraging Kavanaugh from relying upon the Griffin’s Case argument (except as part of the historical predicate for his Sea Clammers-esque “Congress has precluded enforcement” argument):  “We didn't rely too heavily on the point that you're making, partly because we have this other opinion from Justice Chase in the Jefferson Davis case [in which Chase ruled that Section 3 applies in a different way (to preclude a treason prosecution) even without congressional authorization].  So that argument could potentially boomerang on us, which is why we didn't push it very hard in our briefing.”  And he didn’t stop there,  “I think there is other evidence, too,” Mitchell continued, “that might perhaps undercut the usefulness of trying to characterize Griffin's Case as completely emblematic of the original understanding.”  (See also pp. 13-16 of the transcript, where, in response to Justice Kagan, Mitchell tried to pivot from the Griffin’s Case argument to his Sea Clammers preclusion argument, while conceding that he preserved the former in order to invoke the “practical considerations” Chief Justice Chase identified.)

Similarly, Justice Jackson was clearly more sympathetic to Professor Lash’s “Positions Clause” argument that the Presidency isn’t an “office under the United States” that insurrectionists and rebels are disqualified from holding than she was to Mitchell’s “Officials Clause” argument that the President isn’t an “officer of the United States.”  (I explain the distinction between these two arguments, and Trump’s almost exclusive reliance on the latter, here.)  She invited Mitchell to embrace it more forcefully.

No go:  There are, Mitchell acknowledged, “implications from other parts of the Constitution which really help us on the ‘officer of the United States’ argument in that second part of Section 3 but somewhat cut against us when it comes to ‘office under the United States.’"  What’s more, “if this Court were to say the presidency is an excluded office ‘under the United States,’ that could imply, for example, the president is not covered by the [Foreign] Emoluments [Clause].”  Yes, indeed it could, which is one big reason the Lash “intertextualist” argument has little to commend it.  A bit later, Justice Kagan interjected a question about the argument Justice Jackson had flagged:  Is there a reason, she asked Mitchell, “for saying that an insurrectionist cannot hold the whole panoply of offices in the United States, but we're perfectly fine with that insurrectionist being President?”  To which Mitchell responded:  “I think that's an even tougher argument for us to make as a policy matter”—tougher, that is, than the “officer of” argument that he had characterized as lacking any “good rationale”!—because one would think, of all offices, the presidency would be the one you'd want to keep out the Confederate insurrectionists.  That's the commander-in-chief of the Army.  So, again, that's why we're leaning more on the ‘officer of’ argument than the "‘office under.’"  

A few minutes later, Justice Jackson pressed him again, apparently hoping Mitchell wouldn’t be so dismissive of this argument:  “Is there any evidence to suggest that the presidency was what [the framers] were focused on?,” she asked.  Yes, indeed, replied Mitchell, “there is some evidence of that:  There were people saying we don't want Jefferson Davis to be elected president.”  And, if that weren’t enough, Mitchell then invoked an early draft of the disqualification provision, introduced by Representative McKee many weeks before Section 3 was debated, that expressly referenced the offices of President and Vice President.  In their brief, amici Meese, Mukasey, Barr, Calabresi and Lawson invoked that McKee draft as support for the “Presidency isn’t an ‘office under the U.S.’” argument, asserting falsely that the references to the President and Vice President were “deliberately edited out of the final version of Section 3.”  (They weren’t.)  Mitchell, however, repurposed the McKee draft as a reason to disregard the “office under the U.S.” argument (or to view it with suspicion, at least):  The McKee draft, he explained to Justice Jackson, “does show that there was some concern by some people about Confederate insurrectionists ascending to the presidency.  And we didn't want to make a law-office-history type argument where you just look at the historical evidence and pick the evidence that we like and interpret it tangentially, because the other side can come back with us and throw this countervailing evidence back in our face.”

I’ve never seen a Supreme Court advocate so frequently and so candidly explain why the Court should be reluctant to rely upon some of the arguments in his or her brief because of their weaknesses—even when Justices are signaling their support!  I’ll leave it to others to ponder whether that tactic is admirable or foolhardy (or perhaps both).  I’m emphasizing it here because it’s so unusual—and because it confirms why the Court should not endorse at least some of the arguments prominently invoked on Trump’s behalf.

II.  The Chief Justice’s Question About Congress’ Twentieth Century Statutory Repeals

The Chief Justice asked Jonathan Mitchell what he called “one very technical question,” namely, why Congress in 1948 repealed the quo warranto enforcement provision it had enacted in 1870.  Mitchell responded:  “We don't know why.  It looks like it was done as part of a reorganization of the U.S. Code, so it doesn't appear there was any policy motivation behind that decision.  I think a lot of things got repealed during the 1948 decisions that were made.”

I believe I have at least some sense, perhaps imperfect, of what happened, as I discussed in a post last week.

In 1870, there was no effective way for the federal government to preclude insurrectionists and rebels from holding state offices in violation of Section 3.  (The Houses of Congress could and did assess whether elected individuals were disqualified to serve in Congress, and did not allow those who were disqualified to take their seats; and the President and other appointing officials could take steps to preclude disqualified individuals from serving in the federal executive and judicial branches.  So the problem was primarily one of enforcing Section 3 as to state offices.)  Congress accordingly enacted a pair of enforcement provisions in sections 14 and 15 of the Enforcement Act of 1870:  

(i)             Section 14 was a “quo warranto” provision; it required that “whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of [Section 3], it shall be the duty of the district attorney of the United States for the district in which such person shall hold office … to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district,” and that court would thereafter order the individual removed from office upon proof that Section 3 applied.

(ii)           Section 15 made it a criminal misdemeanor for any person ineligible to hold office under Section 3 “to knowingly accept or hold” any office “to which he is ineligible under [Section 3],” or to attempt to hold, or exercise the duties of, any such office.  The offense was punishable by up to a year in prison and a $1000 fine. 

These provisions were rarely used because Congress enacted “amnesty” statutes in 1872 and 1898, by the requisite two-thirds vote of each chamber, that rendered Section 3 virtually a dead letter with respect to secessionists and others involved in the Civil War.

Then, in 1909, Congress overhauled and formally codified the federal criminal code.  In the course of that overhaul, Congress expressly repealed many laws previously included in “Acts” or in the “Revised Statutes.”  One of the repealed provisions was the 1870 misdemeanor provision, which had been denominated section 1787 of the Revised Statutes.  See An Act to codify, revise, and amend the penal laws of the United States, ch. 321, § 341, 35 Stat. 1088, 1153, § 341 (1909) (repealing, inter alia, Rev. Stat. § 1787).  Six years later, the published “United States Compiled Statutes” contained notes that offered explanations of why Congress had repealed various statutes.  It explained that Congress had repealed the 1870 misdemeanor provision because it had been “superseded by the removal of the disability imposed by said section 3 of the fourteenth amendment to the Constitution, by Act June 6, 1898.”  See United States Compiled Statutes, tit. XIX, at 4459 (1916).  (Thanks to Will Baude for bringing the 1916 volume to my attention.)  An adjacent note added that the quo warranto provision, found as section 1786 of the Revised Statutes, likewise had been “superseded” by the same 1898 amnesty provision, id., though Congress did not at that time repeal it, and therefore it nominally remained part of federal law even after the misdemeanor statute was gone.

Fast-forward to 1948.  As part of another formal recodification—this time of the Judicial Code—Congress repealed the quo warranto provision of the 1870 law, along with many other provisions of law.  See Act of June 25, 1948, ch. 646, § 39, 62 Stat. 869, 993 (repealing, inter alia, Rev. Stat. § 1786).  The House Report offered very cursory explanations for why various provisions were repealed, including, in some cases, that provisions had been “covered” or “superseded” by “other law.”  H. Rep. 80-308, at A261.  Those weren’t the explanations for the repeal of the quo warranto provision, however.  Instead, the House Report offered a single word: “obsolete.”  Id. at A230.  I’m not aware of anything in the legislative history about why those responsible for the 1948 revision—which included countless luminaries from the bench and bar, as well as congressional staffers,see id. at 2-5; see also William W. Barron, The Judicial Code, 8 F.R.D. 439 (1948-49)—thought that the provision was “obsolete,” though I haven’t come anywhere close to scouring the entire history.  

Presumably, however, the relevant players in 1948 (who probably did not include any, or many, actual members of Congress, at least with respect to this particular repeal) took as a given the statements in the 1916 Compiled Statutes that the 1870 provisions had been “superseded by the removal of the disability imposed by said section 3 of the fourteenth amendment to the Constitution, by Act June 6, 1898.”  In other words, there’s some reason to believe that perhaps Congress (or its agents, anyway) assumed that the Nineteenth Century amnesty provisions not only eliminated any operative effect of Section 3 for those who engaged in rebellion or insurrection before 1868, but also made Section 3 inoperative prospectively, for purposes of any future rebels, insurrectionists and traitors.

If that is, indeed, what Congress (or its codifying agents) thought, they were almost certainly mistaken.  The better view is that the 1872 and 1898 amnesty statutes did not afford a broad license to officeholders to engage in insurrection or rebellion prospectively without any risk of disqualification—indeed, it’s not at all clear that Section 3 afforded Congress the power to issue such a prospective amnesty.  Moreover, in 1919 the House excluded the elected Victor Berger from membership in the House on grounds that he gave aid and comfort to U.S. enemies during the First World War in violation of Section 3—further evidence that Congress had not issued a prospective “amnesty” back in the Nineteenth Century.  See Baude & Paulsen at pp. 11-16; Cawthorn v. Amalfi, 35 F.4th 245 (4th Cir. 2022).  Nevertheless, it appears that that (mis)understanding about the 1872 and 1898 amnesty provisions might have been the basis for Congress’s 1909 repeal of the federal misdemeanor provision and its 1948 repeal of the federal quo warranto provision.

3.  Justice Gorsuch’s Questions About the Authority of States to Exclude the Names of Presidential Candidates from Ballots

At pages 78-80 of the transcript, Justice Gorsuch asked Jason Murray, counsel for the Anderson plaintiffs, a series of questions about the source of states’ power to exclude persons from a presidential ballot on grounds that Section 3 bars them from serving.  Gorsuch assumed that the authority had to derive from some provision in the federal Constitution itself, and he suggested that it would have to be Section 3.

That’s not correct.

For starters, Colorado is not trying to “enforce” Section 3, and Section 3 is not the source of any authority that Colorado is exercising here (or that other states would exercise).  Moreover, Colorado’s power to determine who appears on a ballot for a presidential primary election does not even come from Article II of the Constitution because, as I explained in that same post, the purpose of that election is not to choose presidential electors but is, instead, to certify delegates to a party’s nominating convention—a certification that the party can disregard.  The state’s power to control the ballot in such a primary election derives entirely from state law.

If this case involved, instead, an exclusion of Trump’s name from a general election ballot (it doesn’t), then Murray was right to respond to Justice Gorsuch that the source of the state’s power to prescribe its rules for ballots—including rules for who can or must be excluded because of federal constitutional disqualifications—would be Article II, § 1 of the Constitution.  Or so the Court itself has held, in cases such as Chiafalo.  According to Justice Thomas, however—including in an opinion in Chiafalo joined in relevant part by Justice Gorsuch himself—the states’ power to exclude someone from a presidential ballot (or to otherwise regulate how electors are chosen and how they must act) derives from state (not federal) law, and there’s nothing in the federal Constitution other than constraints such as the First Amendment and the Equal Protection Clause that limits how the states can act.  

4.  Stuart v. Laird and the Removal of Federal Officeholders

Justice Barrett asked Jonathan Mitchell at one point whether a quo warranto provision of the kind that Congress enacted in 1870 could be applied to sitting federal officials, or whether that would be inconsistent with the Impeachment Clause.  Mitchell responded that Congress can establish means other than impeachment for enforcing Section 3 against sitting federal officers.  

That was correct, but--not that it matters much for purposes of the Trump case--Mitchell's historical example in support of that proposition was questionable.  Mitchell cited the provision of the 1802 “Repeal Act” in which Congress eliminated Article III circuit court positions that had been created by the “Midnight Judges Act” that outgoing President Adams signed in February 1801.  Citing Stuart v. Laird, Mitchell remarked that “Chief Justice Marshall” had in that case “upheld” the statute eliminating the judgeships, which had been challenged on the ground that it violated Article III’s tenure protection.

Mitchell's analogy to the 1802 statute was a very strange move here.  For one thing, the notion that Congress would ever eliminate a federal executive or judicial office simply in order to prevent an insurrectionist or rebel from serving in it is, I think, far-fetched (and of course it couldn't eliminate the presidency, for that or any other reason).  Second, although it's true that the parties in Stuart v, Laird teed up the constitutionality of the judicial repeal, the Court didn't reach that question.  The only part of the Repeal Act that the Court addressed (and upheld) in that case was the requirement in the 1802 Repeal Act that Supreme Court Justices had to “ride circuit.”  5 U.S. (1 Cranch) at 309.  And Chief Justice Marshall didn’t participate in that decision—or, in any event, he “declined giving an opinion,” because he was the Judge who “tried the case in the court below.”  Id. at 308.  The opinion was written by Justice Paterson on behalf of himself and Justices Chase, Moore and Washington—the only four Justices participating.  (Justice Cushing was “absent on account of ill health.”  Id.)

It remains unsettled whether Congress can eliminate at least a judicial office for the purpose of effectively removing the judge who occupies it, without bothering to go through the impeachment process--though Lincoln and the Congress did just that in 1863, in a remarkable episode I recounted in footnote 360 here. 

Collected Posts:

^[1] In a footnote to her opinion for the Court in Chiafalo, Justice Kagan specifically reserved this question (140 S. Ct. at 2324 n.4):  “[I]f a State adopts a condition on its appointments [of electors] that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause, see Art. II, §1, cl. 5.’”  It’s not evident how such a condition could “effectively” impose a new requirement for service as President, unless, perhaps, the jurisdiction in question is a “tipping point” state whose electoral votes determined the outcome of the national election.  But even in that case (and this appears to have been Justice Thomas’ point), the Court in Chiafalo upheld what would, in effect, be a new “qualification” to be President not found in the Constitution itself—namely, to have secured a majority of the popular vote in State X.  In any event, my point is not to suggest that the inapplicability of Term Limits to a presidential election is settled but merely to point out that the Court has not yet held that the rationale of that case, which is critical to Trump’s “qualifications” argument, is apposite there, and to note that it’s at least in serious tension with the rationale of Chiafalo ... and that Justice Thomas, for one, doesn’t accept it.