Trump v. Anderson

DEFINITION OF OFFICER UNDER SECTION THREE OF THE FOURTEENTH AMENDMENT

Trump argues that the President is not an “officer” within the meaning of Section Three of the Fourteenth Amendment. Brief for Petitioner, Trump at 20. Trump asserts that the phrase “officers of the United States,” as used in other constitutional clauses such as the Appointments Clause, Commissions Clause, and Impeachment Clause, establishes that the President is not an “officer” because each of these clauses lists the Presidency and “officers of the United States” as separate categories. Id. at 20–22. Trump further argues that the Supreme Court’s precedent in Free Enterprise Fund v. Public Company Accounting Oversight Board established that “officers of the United States” are only appointed, never elected. Id. at 22. Additionally, Trump contends that Section Three only applies to those who have violated an oath to “support” the Constitution, as required for members of Congress under Article VI; because the President only swears to “preserve, protect, and defend the Constitution,” Trump reasons that the President is exempt. Id. at 23. Trump contends that even if the Presidency is an “office” as the term is colloquially understood, that does not necessarily mean that the President is an “officer of the United States.” Id. at 25–26.

Anderson counters that the Presidency is an “office” under the United States. Brief for Respondent, Anderson, at 33–34. Anderson asserts that the Constitution explicitly refers to the Presidency as an “office” and that, because the President is both the head of the Executive Branch and the Commander-in-Chief, the Presidency qualifies as both a “civil” and “military” office. Id. at 34. Further, Anderson argues that the phrase “under the United States” is used to distinguish between State and federal offices in the Constitution. Id. Anderson posits that her interpretation accords with the original public meaning of Section Three as reflected in contemporaneous congressional debates and executive and judicial opinions. Id. at 34, 36, 38. Anderson further contends that the President is an “officer of the United States” because any federal officeholder is an “officer of the United States” and that the Appointments, Commissions, and Impeachment Clauses were never meant to define “officer.” Id. at 36, 42. Anderson also argues that Section Three provides a parallel structure between barred individuals and the offices they cannot occupy which implies that, if the Presidency is an office, then the President is an officer. Id. at 36–37. Finally, Anderson argues that the difference between the Congressional and Presidential oaths of office is of no consequence because to “defend” the Constitution is to “support” it as well. Id. at 43.

“ENGAGE IN INSURRECTION” AND THE FIRST AMENDMENT

Trump argues that he did not “engage” in insurrection on January 6th, 2021. Brief for Petitioner, Trump at 33. Trump emphasizes that he never explicitly told his supporters to enter the Capitol Building and, in fact, only encouraged “peaceful[] and patriotic[]” protest during his Ellipse speech. Id. at 34. Trump contends that “engagement” requires active participation, rather than a failure to act to prevent the crowd’s unlawful actions. Id. at 34–35. Trump further asserts that the January 6th Capitol attack was not caused or furthered by him, his words, or his actions. Id. at 35–36. Additionally, Trump maintains that his statements were protected political speech under the First Amendment and do not satisfy the “incitement” requirement the Supreme Court set out in Brandenburg v. Ohio, which states that statements are not unconstitutional incitement unless they are both directed and likely to produce imminent lawless action. Id. at 37. Trump urges that, even if his statements contributed to the attack, he lacked the intent necessary to make the statements constitutionally unprotected because his words were not “directed” or “likely” to incite the attack. Id. at 37–38. The Colorado Republican State Central Committee (“CRSCC”) adds that the First Amendment protects its right to select a nominee through the electoral process. Brief for Respondent, Colorado Republican State Central Committee, at 28. The CRSCC argues that the Colorado decision deprives Colorado voters of the right to associate with the political party and nominee of their choosing. Id. at 29.

Anderson argues that Trump’s actions on January 6th sufficiently prove that he “engaged” in “insurrection.” Brief for Respondent, Anderson, at 15. Anderson contends that the plain meaning of “insurrection” includes the “concerted and public use of force . . . to hinder or prevent . . . a peaceful transfer of power.” Id. at 15–16. Anderson emphasizes that the trial court’s findings of fact, such as its finding that Trump engaged in and incited insurrection, are entitled to deference because they are not clearly erroneous and are supported by substantial evidence. Id. at 19–20. Anderson contends that Trump’s words and tweets before and during the attack stoked the crowd’s anger and encouraged imminent violence, satisfying the Brandenburg test. Id. 31–32. Anderson submits that Trump can still have engaged in insurrection without having personally participated in the violence. Id. at 30. Anderson points out that even Reconstruction-era opponents of the Fourteenth Amendment recognized that engaging in insurrection did not require overt acts. Id. Jena Griswold adds that the First Amendment does not entitle the CRSCC to include Trump on Colorado’s primary ballot. Brief for Respondent Jena Griswold, Secretary of State of Colorado, at 40. Griswold asserts that Colorado has an important interest in maintaining ballot integrity, and that the Colorado Election Code vindicates this interest in a non-discriminatory way. Id. at 43–44. Griswold emphasizes that Colorado’s regulation applies equally to all candidates and parties. Id. at 44–45.

FEDERALISM AND ENFORCEMENT OF SECTION THREE

Trump argues that, under Section Five of the Fourteenth Amendment, only Congress can enforce the Disqualification Clause. Brief for Petitioner, Trump at 39. Trump asserts that his view is supported by Chief Justice Chase’s circuit court decision in In re Griffin, and Congress’ subsequent passage of the Enforcement Act of 1870. Id. at 39–40. Trump maintains that, in the absence of easily discernible standards for states to determine whether a potential candidate has “engaged in insurrection,” disqualification by a state court is inappropriate. Id. at 40. Trump also posits that Section Three cannot be used to remove him from the ballot because its text only forbids insurrectionists from holding office, not from running for office and being elected. Id. at 41. Trump submits that the Colorado Supreme Court’s construction of the Colorado Election Code violates federal Supreme Court precedent by impermissibly modifying the Constitution’s eligibility requirements for the Presidency. Id. at 43–44. Trump also claims that the Constitution bars the Colorado Supreme Court from deciding his case because the Electors Clause of the Constitution limits the ability of state courts to review election claims. Id. at 46. Trump asserts that the Colorado Election Code only allows the state judiciary to decide election claims when an official is at risk of committing a “wrongful act.” Id. at 46. Trump argues that the Colorado Supreme Court misinterpreted the Colorado Election Code, which only requires a political party to advance at least one qualified candidate, and thus that the court exceeded its authority. Id. at 47. Trump maintains that he did not forfeit this argument in the lower court proceedings because he could not have foreseen how the Colorado Supreme Court would interpret the Electors Clause. Id. at 48–49. Trump suggests that, when a state law issue is closely related to a question of federal constitutional law, the Supreme Court may overturn otherwise-binding state judicial interpretations of state law. Id. at 49.

Anderson argues that state courts may enforce their ballot access laws even if doing so requires interpreting Section Three. Brief for Respondent, Anderson, at 45. Anderson maintains that the Electors Clause allows states to condition an elector’s appointment on compliance with the constitutional requirements of the office. Id. at 46–47. Anderson contends that, because states may bar candidates on the basis of disqualifying provisions, Colorado may bar Trump from the ballot. Id. at 49. Anderson also argues that whether Section Three must be enforced by federal legislation is irrelevant because this case is about Colorado state law. Id. at 52–53. Griswold adds that Trump forfeited the Electors Clause argument by failing to raise it in the lower court proceedings. Brief for Respondent Jena Griswold, Secretary of State of Colorado, at 33. Griswold urges that, even if Trump did not forfeit the argument, the Colorado Supreme Court’s decision did not violate the Electors Clause because Colorado’s legislature properly delegated authority to resolve election controversies to its courts. Id. at 34–35. Griswold contends that Colorado did not attempt to avoid federal law and instead enforced the text of Section Three, as it was required to under the Colorado Election Code. Id. at 36. Griswold emphasizes that the Colorado Supreme Court’s interpretation was “well within the bounds of ‘ordinary judicial review,’” since it relied on standard modes of statutory interpretation when analyzing the Constitution and Colorado’s statutes. Id. at 36–37. Griswold asserts that a contrary decision would curtail Colorado’s sovereignty. Id. at 37.