I have written this piece for Slate. it begins:
When the Supreme Court hears oral argument on Feb. 8 over Colorado’s decision to disqualify Donald Trump from appearing on the 2024 ballot on grounds that he engaged in insurrection and therefore violated part of the 14th Amendment, the odds have got to be in Trump’s favor. There are just so many legal and factual issues that have to be resolved just right for the challengers to Trump’s eligibility to succeed. Trump only has to win on one of the issues and he’s back on the ballot, not just in Colorado, but potentially across the country. Still, a look at Trump’s most recently filed Supreme Court brief shows some odd strategic choices, most notably exposing some weaknesses in his position and revealing the Litigant in Chief as hedging some bets for another potential trip to the Supreme Court one year from now….
Briefs are typically written to put the strongest argument first. Why would Trump think the officer argument is the strongest? It seems weak: As Trump’s challengers argue in the Supreme Court: “It would defy common sense to hold that Section 3 disqualifies every oath-breaking insurrectionist officer (down to postmaster or county sheriff) except the most powerful one—a former Commander-in-Chief.” This is especially true given the historical context of the amendment’s passage. As conservative scholar Sam Bray recently wrote over at the Volokh Conspiracy:
It is hard to imagine that the Reconstruction Congress that proposed Section 3 of the Fourteenth Amendment, and the state legislatures that ratified it—in the middle of an intense struggle with President Andrew Johnson, and focused on all the problems that could come from a President who was not on board with reconstruction—would say that the two people who should be allowed to be Confederates would be the President and Vice President.
Trump or his lawyers must have calculated that a technical argument would be more appealing to the conservative majority than his other ones, such as an argument that Trump had the constitutional right to encourage his supporters to invade the Capitol. Deciding matters on a technicality would allow the Supreme Court to hide behind legal jargon and avoid weighing in on Trump’s conduct. And it would allow Trump to claim a victory (I can imagine him crowing about a “complete and total vindication”) that would shut down disqualification efforts across the country and that could inure to his political benefit. Further, Trump’s lawyer probably does not want to get up in front of the justices at oral argument and parse Trump’s comments made in the speech before the Capitol invasion about why his supporters need to “fight like hell.” (Trump’s brief says he made that comment “metaphorically.”)….
Trump’s abandonment of the political question argument signals additional lack of confidence in his political position—he thinks he might need the Supreme Court to weigh in on the question after the election and doesn’t want to push an argument now against judicial review.