Trump’s brief to the Supreme Court is solid, well-written, persuasive, and underreported

Maine Secretary of State Shenna Bellows

Six days ago, Donald Trump’s lawyers filed a 34-page brief in the Supreme Court. In legal-speak, their brief is called a “petition for certiorari.” It asks the U.S. Supreme Court to review the 4-3 decision by the Colorado Supreme Court banning Trump from the Colorado ballot. (The brief is available, in full, at the Supreme Court website.) 

This case presents one of the most important legal and political issues of this century: Whether a state can exclude a national candidate from the state’s ballot on the grounds that he committed a federal crime that he was never convicted of or even charged with.

But the media has largely ignored Trump’s brief. I have not seen a single news report about it. Reporters embarked on crazy endzone dancing when the Colorado decision came out last month, which has apparently left them too woozy and hungover to report on a particular salient fact – namely, that this play is almost certainly under review¹ by the real Supreme Court. And initial indications point to the on-field ruling being overturned.

Trump’s brief cites and quotes extensively from the well-reasoned three-justice dissenting opinion in Colorado – another piece of news that was little-reported.

Meanwhile, much more-reported is that the Secretary of State of Maine has single-handedly barred Trump from the Maine ballot. Unlike most secretaries of states, the one in Maine is appointed, not elected, and is also a non-lawyer.

We thus have a non-lawyer political activist appointee in a small state taking it upon herself to function as cop, prosecutor, judge and jury to convict a person of a crime – insurrection – with which the person has never actually been charged.

This, we’re told, is for the purpose of “saving democracy.” Maybe the “democracy” to which they aspire is the Democratic People’s Republic of Korea.

Unlike the reporters, I’m aware of Trump’s brief and I’ve read it. It is very well written and readable. Unlike the upcoming news reports of it (assuming the reporters eventually sober up, discover its existence, and report on it), it contains no typographical errors other than a single, inconsequential misplaced comma.

The opening argument contends that the president is not an “officer” of the United States. I personally find that argument counterintuitive, but the brief makes a pretty good case for it on the basis of semantics and historical context.

The other main argument is that the 14^th Amendment prohibition against “insurrectionists” holding office is not “self-executing.” That means the Amendment was intended to permit Congress to enact legislation establishing procedures to bar insurrectionists (and, presumably, to define them) but, in the absence of such procedures, the insurrectionist clause is toothless.

I think that’s the best argument, and it dovetails with the due process argument that Trump never had his day in court. He was never permitted to testify in Colorado, to call his own witnesses, to cross examine hostile witnesses, or to present his case in any manner at all to a jury.

Trump was instead convicted of the crime of insurrection without ever being charged with it. It was a backdoor conviction that deprives the people of their chosen candidate, and denies that candidate the opportunity to run for his chosen office.

Whatever you think of Trump, that’s very bad precedent. No less that former Attorney General Bill Barr (now a Trump nemesis) has opined in the Wall Street Journal (another Trump nemesis) that he strongly opposes Trump but equally strongly opposes the undemocratic skullduggery of political partisans barring him from the ballot.

Already, while other blue states salivate at the prospect that they, too, can get some feel-good by cancelling Trump for his purported but uncharged insurrection, red states are making noises about cancelling Joe Biden on the same grounds. Isn’t it insurrection, the Red states say, for the president in charge of enforcing the nation’s laws to open the borders to millions of illegal immigrants in violation of those laws?

The answer is apparently “yes” if you can find a non-lawyer political activist disguised as a secretary of state to say so.

This Colorado case and now the Maine action truly have the potential to fracture the republic. Different states could have different major candidates for president depending on the makeup of their political appointees who decide without juries, trials or due process who is an “insurrectionist.” Once that happens, no candidate is safe.

¹ Regarding the Supreme Court review, it is safely assumed that the Supreme Court will take the case, but less certain is the timing. They could take it on an expedited basis but they could also take it on an ordinary basis. If the latter, the decision could well come after the election.

I doubt the Court would let that happen, but they might. The Court is wary of wading into purely political fights, and avoids doing so if they can. Here, it is possible that the case will become moot anyway if Trump has a health problem (he’s not a young man) or if he fails to win the Republican primary (though that seems unlikely at this point).

Bush v. Gore was expedited, but that was different. The nation would have been without a president for many months if the Court had not expedited. Moreover, with each passing day, shady officials in Florida seemed to “find” additional ballots that appeared to suspiciously favor one candidate over the other.

Glenn K. Beaton practiced law in the federal courts, including the Supreme Court.