Trump Made Some Ludicrous Legal Arguments About Staying on the Colorado Ballot

Former President Donald Trump’s lawyers have a long history of making wild-eyed arguments that sound more like one of Trump’s freewheeling campaign speeches than a carefully-reasoned legal analysis. 

Yet even by those standards, Trump’s petition to the Supreme Court to reverse his electoral disqualification in Colorado makes some guffaw-inducing claims. Just take the part where it says that Trump never technically vowed to “support” the Constitution, despite being sworn in as president. Or where it makes the rather confusing claim that even if Trump is legally barred from becoming president again, he should still be allowed to campaign for the office—and even win the election. 

Of course, it makes sense that Trump’s team is throwing the kitchen sink at this one: It could be the whole ballgame for the 2024 election. 

Trump wants the high court to stop any state from booting him off the ballot over the Jan. 6 Capitol riot. Colorado is simply the first and only state where a court has actually concluded that, yes, Trump participated in an insurrection, and yes, the Constitution therefore bars him from running for president in that state. If Trump loses this Supreme Court appeal, however, more states would have the green light to follow. And similar cases are pending around the country.

Colorado’s decision rests on the Constitution’s so-called insurrection clause, which was crafted after the Civil War to stop ex-Confederates from rising to power via the ballot box. Maine has pulled a parallel but distinct move, in which the Secretary of State (not a court) ruled Trump ineligible in response to challenges brought by Republican voters.

Of course, some of Trump’s arguments aren’t laughable. His legal team argues that the deadly Jan. 6 attack on the Capitol, in which his supporters used violence to disrupt the peaceful transfer of power, was not technically an insurrection. What’s more, they argue, even if it was, Trump wasn’t a part of any insurrection, since he didn’t actually go to the Capitol building himself (but merely told his followers to go). Trump’s team further argues that the provision doesn’t specify an exact mechanism for figuring out who is disqualified, and who is not, and that the state court decision shouldn’t count.

Yet other arguments his lawyers raise… are kind of ridiculous. 

Perhaps the silliest argument Trump’s lawyers make is that, despite being president, he never technically swore an oath to “support” the Constitution. 

The Constitution’s insurrection clause says that if any officer of the United States swears to support the Constitution, and then joins or assists an insurrection, then that person is disqualified from holding office in the future.

Trump’s lawyers argue that the pledge Trump took when he was sworn into the presidency doesn’t match the exact language of this Constitutional provision—so it doesn’t count.

“The president swears a different oath set forth in Article II, in which he promises to ‘preserve, protect, and defend the Constitution of the United States’—and in which the word ‘support’ is nowhere to be found,” Trump’s legal team wrote in its brief to the high court. 

In other words, Trump is arguing that his vow to “defend” the Constitution is not the same as a vow to “support” it. It’s not clear how Trump could promise to defend the Constitution while not supporting it, and his lawyers don’t jump into that question, but rather insist the language of the passage means it doesn’t apply to Trump.

They also argue that the Constitution only bars an insurrectionist from “holding office”—and doesn’t stop him from running for that office or even winning an election to take it.

In other words, they argue that even if Trump is barred from actually being president, he could still campaign and win more electoral college votes than the other candidate. What would happen after that hypothetical situation is left a bit vague, although Trump’s lawyers hold out the possibility that he somehow “might become qualified before the inauguration.” 

Trump’s legal team also argues that the insurrection clause applies to members of Congress—but not the president. They point out that the Constitutional language specifies any “officer of the United States,” but argue that the President of the United States is not such an “officer.” 

This question has been argued over in the past, and Trump’s lawyers aren’t the only ones who have argued that the president may not technically be an “officer” according to strict Constitutional legalese.

But applying that reasoning to this case raises problems. Because that would mean that the authors of this provision, which was intended to keep rebels from taking power in elections, would have been totally cool with one of those rebels winning the presidency. 

Take, for example, former Confederate president Jefferson Davis. Trump’s argument essentially boils down to asserting that the folks who put this provision in place wanted to block people like Davis from becoming, say, a senator, but were fine with him becoming Commander-in-Chief. 

Of course, Trump may not only be relying on the force of his lawyers’ legal acumen to persuade the Supreme Court. 

Trump appointed three members of the Supreme Court’s current 6-3 conservative majority. 

And his attorney Alina Habba recently went on Fox News to make the not-so-subtle suggestion that, in effect, they now owe him one. 

“I think it should be a slam dunk in the Supreme Court; I have faith in them,” Habba said. “You know, people like [Justice Brett] Kavanaugh who the president fought for, who the president went through hell to get into place, he’ll step up.”