Some final pre-game thoughts on Trump v. Anderson

The legal drama of 2024 continues, as the D.C. Circuit held yesterday that former president Trump is not entitled to assert immunity in the federal prosecution for alleged crimes committed in connection with his efforts to contest the results of the 2020 election, including the January 6, 2021 violent breach of the U.S. Capitol. The federal criminal case involving January 6 is not to be confused with the Georgia criminal case related to January 6, or the federal civil case against Trump for January 6, or the federal criminal case against Trump that does not involve January 6, or the New York criminal case against Trump that does not involve January 6, or other New York civil cases against him, well, you get the idea. The former president has his share of legal troubles.

None of these, however, is this week’s headline event. That honor belongs to Trump v. Anderson, which will be argued tomorrow, February 8, before the Supreme Court. As I am sure you know, the Court will be hearing Trump’s appeal of the Colorado Supreme Court’s decision that he may not appear on that state’s Republican primary ballot because he is disqualified from holding the presidency, under section 3 of the 14th amendment, by virtue of his having “engaged in insurrection.”

Trump v. Anderson is a very complicated case, involving a lot of difficult and novel issues. There are several paths the Court could choose to go down, and on each of those paths are one or more forks in the road that branch off in different directions. This makes it very difficult to predict how the Court will decide the case, although most observers, myself included, think it is most likely it will not affirm the decision to remove Trump from the ballot.

That prediction rests more on institutional incentives than legal analysis, though. The Court, particularly Chief Justice Roberts, will not want to be seen as depriving voters of the opportunity to support the candidate of their choice. At the same time, the Court (at least most of the justices) will not want to condone Trump’s behavior and will probably want to avoid taking a position, if possible, on whether his conduct amounted to “engaging in insurrection.” This implies a compromise decision where the Court takes one of many “off-ramps” that allow it to avoid the merits of the insurrection issue, while allowing Trump to remain on the ballot.

As far as it goes, this would be a “pro-Trump” result. But the Court can avoid the appearance of political bias in various ways. One is to act unanimously, or close to it, which means attracting support from its three Democratic appointees. A second (related to the first) is to make clear in its decision, as did the D.C. Circuit in its immunity opinion, that Trump’s conduct (excuse me, Trump’s “alleged” conduct) in connection with the 2020 election and January 6 went far beyond what was lawful or acceptable. A third (also related to the first) would be to leave open the question whether Trump will ultimately be qualified to hold the presidency under section 3 and possibly to lay out one or more mechanisms by which that issue could be resolved in the future. That would open a whole other can of worms, which we will have to leave to a future post.

Finally, Trump will undoubtedly be asking the Court to review the D.C. Circuit’s immunity decision (under the D.C. Circuit’s order, he has only until February 12 to request Supreme Court review if he wishes an automatic stay of the mandate). While the criminal prosecution and the section 3 disqualification case are legally distinct and unrelated, a speedy (and hopefully unanimous) rejection of Trump’s claim of immunity from criminal prosecution would go a long way toward protecting the Court from claims of political favoritism.

While these speculations are based on the political and practical realities, they do not exist in a vacuum separate from legal analysis. Affirming the D.C. Circuit’s decision on immunity (or simply denying Trump’s petition for certiorari) would be legally correct and it would be difficult to justify any other result. In contrast, affirming the Colorado Supreme Court’s decision would be much more problematic from the standpoint of existing legal doctrine.

The legal complexities of Trump v. Anderson are laid out in a series of lengthy posts by Professor Marty Lederman at Balkinization (see here for the first of many). I agree with many of the points Lederman makes, while others, such as on mootness and statutory jurisdiction, sound plausible but I have not thought much about. There is one point in particular that I want to highlight, one that I have not seen anywhere else—except on my twitter (or whatever we are calling it now) feed.

I am not sure if this case has anything to do with whether section 3 is “self-executing.” Whatever power Colorado has here stems from its authority to determine the manner of appointment of presidential electors, not enforcement of section 3.

— Mike Stern (@mls1776) December 25, 2023

As I noted there and in various other tweets, it has generally been accepted that one key issue in Colorado and other states where Trump’s ballot access has been challenged is whether section 3 is “self-executing.” There is some confusion about exactly what “self-executing” means, as Trump claims he is not disputing that section 3 is self-executing, but merely that it can only be enforced pursuant to specific congressional legislation. See Trump Reply Br. at 19-20. This strikes me as a distinction without a difference. In any event, the bottom line claim is the same- section 3 can only be enforced to the extent that Congress so provides through legislation under section 5 of the 14th amendment.

But, as Professor Lederman explains here, Colorado is not enforcing section 3, which is something states clearly cannot do with respect to federal officials, most obviously including the president. No one would argue, I hope, that a state could declare the sitting president, whether it were Trump, Biden or anyone else, to be disqualified under section 3 (or any other constitutional provision) and therefore proceed to treat the president’s actions as null and void. Instead, what Colorado is doing is applying its own election laws, which (according to the Colorado Supreme Court) require it to remove from the ballot candidates who are ineligible for office for any reason, including violation of section 3. Now it may (or may not) be that Colorado is constitutionally forbidden from exercising this power with respect to presidential candidates who are in fact eligible to hold office. In that case Trump’s alleged eligibility under section 3 would be a defense to Colorado’s action, but that would not make Colorado’s action an enforcement or implementation of section 3.

One more observation about the “self-execution” issue. Trump’s position is that the only method currently authorized by Congress for enforcing section 3 is the Insurrection Act, a criminal statute currently codified at 18 U.S.C. § 2383. This strikes me as being in some tension with his position that he is absolutely immune from criminal prosecution for his actions relating to the 2020 election and January 6. Perhaps someone will ask his counsel about that tomorrow.

Finally, I will note that I do have one strong, although perhaps not too significant for present purposes, disagreement with Professor Lederman. He contends that members of Congress are “officers of the United States” and hold “offices under the United States” at least for some constitutional purposes. This is an arguable (though imho mistaken) proposition, and it is certainly true that there has been controversy about this throughout our history, including at the time of the framing and ratification of the 14th amendment. However, Lederman goes too far when he suggests that the Blount case was not generally understood to stand for the proposition that members of Congress are not “civil officers of the United States” and therefore not subject to impeachment. As I pointed out to him on twitter (or whatever), this is just plain wrong, as all the early treatise writers (Tucker, Rawle, Story) so understood this to be the rationale of the Blount case. As do more modern writers, such as Professor David Currie and Lederman’s colleague at Georgetown Law School, Professor Josh Chafetz. See Josh Chafetz, Congress’s Constitution 149 (2017) (“The Senate decided that members of Congress were no ‘civil Officers’ and therefore not impeachable; instead, they expelled [Blount] by a vote of twenty-five to one.”).

Further exploration of that topic, however, will have to wait for another day.

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