9 months ago
Dozens of outside voices have weighed in on whether former President Donald Trump is eligible to run for the presidency again.
There were nearly 80 amicus briefs filed in Anderson v. Trump, the case that looks to have Trump disqualified based on an interpretation of a clause of the 14th Amendment that bars insurrectionists from holding public office if they had previously taken an oath to “support” the Constitution. The Court will hear arguments for the case on Thursday.
These briefs — which are sometimes known as friend of the court briefings — let parties that aren’t actually directly involved in a case in front of the court put forward legal arguments that justices (might) consider.
Those who filed ran the gamut from legal gadflies to well-known election law experts, as well as current and former members of Congress and election officials.
Here’s a round-up of some of the most notable ones — and the legal arguments they put forth:
Siding with Trump
The Republican establishment: The Republican National Committee, National Republican Senatorial Committee, National Republican Congressional Committee, nearly three dozen Republican state parties, and almost 200 Republican members of Congress — including Speaker Mike Johnson and Senate Minority Leader Mitch McConnell — filed a slew of amicus briefs arguing that Trump should remain on the ballot.
Aside from the obvious point that the Republican Party wanted to line up behind their likely nominee, some of these filers also advanced an argument of whether it was really up to the courts to decide.
The GOP lawmakers, for example, argued that Congress should be the ones to make the call when or how to apply Section 3 — which they could (but have not done) by passing legislation. They also argued that a “lengthy list of partisan grievances could be labeled as ‘engaging in insurrection,’” and that the Colorado court took an overly-broad definition.
Former A.G. Bill Barr: Trump’s former attorney general has been no fan of the former president since Jan. 6. Nevertheless, he signed on to a brief with other former attorneys general and others saying that “whatever one thinks of the behavior of former President Trump in the wake of the 2020 election, Section 3 of the Fourteenth Amendment does not disqualify him" because it does not apply to presidential candidates.
Vivek Ramaswamy: One of Trump’s vanquished primary foes weighed in, backing the former president. The filing, submitted while Ramaswamy was still an active candidate, argued that if the courts wanted to go down that route, nearly every president since Jimmy Carter could be accused of engaging in an insurrection. “Mr. Ramaswamy understands that each of these examples will strike the Court as tenuous or even absurd,” his lawyers wrote. “That’s because they are.”
The father of one of Trump’s central arguments: The main argument Trump’s legal team has leaned on is that the 14th Amendment disqualification does not apply to him because the president is not “an officer of the United States.” The main legal proponent of this legal theory — Seth Barrett Tillman, an American law professor in Ireland — filed a briefing backing Trump. (Tillman also asked the court to grant him time to participate in oral arguments, which the court denied.)
On behalf of neither party
Michigan’s secretary of state and well known election law experts: Michigan Secretary of State Jocelyn Benson, a Democrat, and a trio of well known election law experts — professors Edward Foley and Rick Hasen and longtime GOP attorney Benjamin Ginsberg — filed a pair of briefings broadly not weighing in on the underlying arguments as they apply to Trump, but urging the court to make a final decision and not try to kick the can down the road.
“We appreciate fully that the Members of this Court would prefer not to be thrust into the midst of a presidential election like this. But there is no avoiding it,” the election lawyers wrote. “Any contention that the time and place for determining Section 3’s applicability is on January 6, 2025, after the election is concluded, invites disaster for the Nation.”
Supporting the Anderson challengers
Former Republican members of Congress and governors: Basically no Democratic officials — either current or former — filed amicus briefs in this case. But some former Republican elected officials did, asking the high court to uphold his disqualification.
“As time has passed and new election cycles have begun, some have tried to rewrite the history and significance of the insurrection on January 6,” a brief from a dozen former GOP members read. “But any reasonable, good faith consideration of the events surrounding January 6 necessitates the conclusion that Trump encouraged an armed, violent mob to prevent Congress from taking an essential step in the transition of presidential power.”
Former federal judge J. Michael Luttig: Luttig is most well-known for advising then-Vice President Mike Pence to reject Trump’s allies’ attempts to cast fake Electoral College votes three years ago. But the conservative judge has also been one of the leading scholars pushing for Trump to be disqualified. “Mr. Trump deliberately tried to break the Constitution — to incite threatened and actual armed force to prevent the peaceful transfer of executive power,” he and other conservative lawyers and former officials wrote. “That constituted engaging in an insurrection against the Constitution.”
Current and former Capitol police officers: A group of current and former Capitol police officers who are suing Trump for his role on Jan. 6 also filed a brief here, saying that “speech integral to an alleged act of insurrection, like Mr. Trump’s speech on and leading up to January 6, lies entirely outside the First Amendment’s ambit.”
English (US)