As the Supreme Court prepares to hold arguments next month on Donald Trump’s eligibility to run for president, there’s one viewpoint it hasn’t heard: the Biden administration’s.
In most high-stakes cases with serious implications for the federal government, the Justice Department weighs in with the official views of the executive branch. But in the Trump case, amid a flood of amicus briefs from states, lawmakers, law professors and interest groups, any filing from the Justice Department has so far been noticeably absent.
The silence reflects the unprecedented sensitivities of a case that will likely decide whether Trump will be Joe Biden’s opponent in the general election. Although the Justice Department is supposed to represent the institutional interests of the U.S. government and not the political interests of the sitting president, any position the agency takes on Trump’s eligibility could trigger blowback if it’s perceived as trying to help Biden’s reelection campaign.
That blowback would negate the purpose of submitting arguments in the first place, legal experts said.
“Even if it is the most cautious, careful, lawyerly argument, having the administration of a sitting president weigh in on whether his opponent is eligible to serve strikes me as a bit too delicate and would be seen as political posturing, even if just meant to help the court,” said UCLA law professor Rick Hasen.
But staying silent carries risks, too. While the immediate question in the case is whether Trump is barred from holding office by the 14th Amendment’s insurrection clause due to his actions before and during the attack on the Capitol Jan. 6, 2021, the high court’s eventual decision could reverberate far beyond Trump. It could affect how numerous federal officers are covered under unrelated legal provisions, and it could even implicate other portions of the 14th Amendment that protect civil rights.