Amicus brief of former GOP members of Congress in the Trump-Colorado case

A dozen former Republican members of Congress have submitted an amicus brief in support of respondents, urging the U.S. Supreme Court in Trump v. Anderson to affirm the disqualification of Trump. Although the brief submitted on behalf of Ben Ginsberg, Rick Hasen, and me did not take a position on the merits of the disqualification issue (and thus was in support of neither party), there is a significant overlap between our brief and one aspect of this one. These former members of Congress argue forcefully that if the Court were to punt the merits of the disqualification issue to Congress, for potential resolution at the joint session of Congress on January 6, 2025, it would “invite another insurrection” (as the brief’s heading of its fourth point explicitly puts it).

Here are some portions of the brief that I highlighted on this point:

“Trump’s argument that Section 3 may be enforced only after the election and only by Congress is not only legally wrong but also dangerous. If the Court accepts Trump’s argument, Congress would be faced with the choice of disenfranchising millions of voters shortly after an election with limited process protections or allowing an insurrectionist to assume the most powerful office in our nation. Chaos would only be the beginning of what would come next.” (Page 22.)

“Requiring post-election enforcement has no basis in law and would gratuitously thrust the country into a historically unprecedented situation where the rules of the road are gravely unclear. Inviting this kind of chaos into our political system, in the election immediately after one marred by insurrection, runs the risk of eroding a fragmented public’s trust in the electorate process, in one another, and in the institution of U.S. democracy.” (Page 23.)

“[A]s former members of Congress, amici believe that, in asking for post-election enforcement of the Section 3 disqualification clause, Trump is attempting to back Congress into a corner where enforcement of the Constitution against him seems untenable. For the sake of our democracy, this Court should not allow Trump to force Congress into such a precarious position.” (Page 24.)

“Post-election enforcement of the Section 3 disqualification clause would seem like an act of political retribution to the ordinary American. And, to a lay voter, the semantics of constitutional interpretation would not outweigh the seemingly contradictory fact that a candidate who has been platformed for months as legitimate is suddenly barred from assuming office. Public resentment at this seeming erosion of the democratic process would only be propelled by the vitriol of a candidate who has already shown himself capable of violence against our democratic system. This is the perfect recipe for a repeat of January 6.” (Pages 24-25.)

“One can only conclude that if Congress is tasked with deciding Trump’s political fate after an election, he will not hesitate to turn his sights, and his mob, on Congress once more. The ongoing threats of violence and intimidation against political opponents emanating from Trump only heightens the necessity of pre-election enforcement to the perceived legitimacy of the American political process.” (Pages 25-26.)

Given that our brief also warned of the risks to political stability if Congress were to consider disqualifying Trump on January 6, 2025, I hope that the Court heeds this additional warning, which comes from individuals with special insight regarding the stakes involved.

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