No.

23-719

In the
Supreme Court of the United States

DONALD J. TRUMP,

Petitioner,

v.

NORMA ANDERSON, et al.,

Respondents.

On Writ of Certiorari to the

Supreme Court of Colorado

BRIEF OF AMICI CURIAE J. MICHAEL LUTTIG,

PETER KEISLER, LARRY THOMPSON, STUART
GERSON, DONALD AYER, ET AL., IN SUPPORT
OF THE ANDERSON RESPONDENTS

Matthew W. Edwards Richard D. Bernstein

1300 19th Street NW, Counsel of Record
Suite 300 1875 K Street NW,
Washington, DC 20036 Suite 100
Washington, DC 20006
Nancy A. Temple (301) 775-2064
Katten & Temple, LLP [email protected]
209 S. LaSalle Street,
Suite 950
Chicago, IL 60604
Counsel for Amici Curiae

January 29, 2024

327118
i

TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

I N T RODUC T ION A N D SU M M A RY OF
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. STATE COURTS AND THIS COURT

H AV E T H E J U DIC I A L P OW ER
T O DEC I DE A PR E S I DEN T I A L
DISQUALIFICATION DISPUTE. . . . . . . . . . . . 3

A. The Electors Clause Allocates This Power

To The States, Subject To This Court’s
Article III Judicial Review. . . . . . . . . . . . . . 3

B. No Amendment Repeals This Allocation

Of Judicial Power. . . . . . . . . . . . . . . . . . . . . . . 8

1. Section 5 of the Fou r teenth

Amendment . . . . . . . . . . . . . . . . . . . . . . . 8

2. Section 3 of the Fou r teenth

Amendment . . . . . . . . . . . . . . . . . . . . . . 10
ii

Table of Contents
Page
3. The Twelfth Amendment . . . . . . . . . . . 13

4. The Twentieth Amendment . . . . . . . . . 15

C. The Political Question Doctrine Does

Not Apply. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

D. Federalism And Separation Of Powers

Support Traditional Court Adjudication
Rather Than Sole, Unreviewable
Congressional Power. . . . . . . . . . . . . . . . . . . 16

II. THE FAIR MEANING OF SECTION 3

DISQUALIFIES FORMER PRESIDENT
TRUMP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. Section 3 Must Be Accorded Its Fair

Meaning, Not A Narrow Construction . . . 19

B. The “President Of The United States”

Is An “[O]fficer of the United States” . . . . 21

C. T h e J a n u a r y 6 , 2 0 2 1 A r m e d
Attempt To Prevent The Peaceful
Transfer Of Executive Power Was
An “Insurrection . . . Against The”
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 24

D. M r. T r u mp “ Eng a g e d I n” T he
Insurrection . . . . . . . . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
iii

TABLE OF APPENDICES
Page
APPENDIX A — LIST OF AMICI CURIAE . . . . . . . 1a
iv

TABLE OF CITED AUTHORITIES

Page
Amy Warwick (The Prize Cases),
67 U.S. 635 (1862) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ASARCO Inc. v. Kadish,

490 U.S. 605 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Barry v. United States ex rel. Cunningham,

279 U.S. 597 (1929) . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 15

Brandbenburg v. Ohio,
395 U.S. 444 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Bush v. Gore,
531 U.S. 98 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 16

Chiafalo v. Washington,
140 S. Ct. 2316 (2020) . . . . . . . . . . . . . . . . . 6, 11, 13, 26

Cooper v. Aaron,
358 U.S. 1 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

District of Columbia v. Heller,

554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Dobbs v. Jackson Women’s Health Organization,

597 U.S. 215 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Hassan v. Colorado,
495 F. App’x 947 (10th Cir. 2012) . . . . . . . . . . . . . . . . . 6
v

Cited Authorities
Page
In re Canvass of Absentee and Mail-In Ballots of
Nov. 3, 2020 Gen. Election,
No. 31 EAP 2020, 241 A.3d 1058 (Pa. Nov. 23,
2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

In re Canvassing Observation,
241 A.3d 339 (Pa. Nov. 17, 2020) . . . . . . . . . . . . . . . . 30

In re Charge to Grand-Jury Treason,

30 F. Cas. 1047 (C.C.E.D. Pa. 1851) . . . . . . . . . . . . . . 29

In re Griffin,
11 F. Cas. 7 (Cir. Ct. D. Va. 1869) . . . . . . . . . . . . . . . . 9

Johnson v. Sec’y of State,

951 N.W.2d 310 (Mich. Dec. 9, 2020) . . . . . . . . . . . . . 29

Law v. Whitmer,
No. 82178, 477 P.3d 1124 (Nev. Dec. 8, 2020) . . . . . . 30

McPherson v. Blacker,
146 U.S. 1 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

New York v. United States,

505 U.S. 144 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
vi

Cited Authorities
Page
Northern Sec. Corp v. United States,
193 U.S. 197 (1904) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Seila Law LLC v. Consumer Fin. Prot. Bureau,

140 S. Ct. 2183 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 26

Shelby County v. Holder,

570 U.S. 529 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Texas v. Pennsylvania,
141 S. Ct. 1230 (Dec. 11, 2020) . . . . . . . . . . . . . . . . . . 29

Thomas v. Loney,
134 U.S. 372 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Trump v. Biden,
951 N.W.2d 568 (Wis. Dec. 14, 2020) . . . . . . . . . . . . . 29

United States v. Burr,

25 F. Cas. 30 (C.C.D. Va. 1807) . . . . . . . . . . . . . . . . . 25

Ward v. Jackson,
No. CV-20-0343, 2020 WL 8617817 (Ariz.
Dec. 8, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Statutes

3 U.S.C. § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

18 U.S.C. § 2383 . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 16

vii

Cited Authorities
Page
28 U.S.C. § 453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

U.S. Const. amend. XII . . . . . . . . . . . . . . . . . . . . . . . . 1, 13

U.S. Const. amend XIV, § 3 . . . . . . . . . . . 2, 6, 7, 10, 11, 19

U.S. Const. amend. XX . . . . . . . . . . . . . . . . . . . . . . . . 1, 15

U.S. Const. amend. XX, § 3 . . . . . . . . . . . . . . . . . . . . . . . 15

U.S. Const. art. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

U.S. Const. art. I § 2, cl. 5 . . . . . . . . . . . . . . . . . . . . . . . . . 9

U.S. Const. art. I § 3, cl. 6 . . . . . . . . . . . . . . . . . . . . . . . 4, 9

U.S. Const. art I, § 4 cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . 10

U.S. Const. art I, § 5 . . . . . . . . . . . . . . . . 4, 5, 6, 10, 14, 15

U.S. Const. art I, § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U.S. Const. art I, § 8 cl. 17 . . . . . . . . . . . . . . . . . . . . . . . . . 9

U.S. Const. art I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

U.S. Const. art. II, § 1, cl. 1 . . . . . . . . . . . . . . . . 2, 6, 21, 24

viii

Cited Authorities
Page
U.S. Const. art. II, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . 14, 18

U.S. Const. art. II, § 1, cl. 3 . . . . . . . . . . . . . . . . . . . . 14, 25

U.S. Const. art. III, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 11

U.S. Const. art. III, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . 7

U.S. Const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . 19

Other Sources

R. Bernstein, “Lots of People Are Disqualified

from Becoming President,” Atlantic (Feb.
4, 2021) https://www.theatlantic.com/ideas/
archive/2021/02 /tr ump - disqualif ication-
president/617908/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Samuel Bray, “Officer of the United States”

in Context, Reason (Jan. 22, 2024) https://
reason.com/volokh/2024/01/22/officer-of-the-
united-states-in-context/. . . . . . . . . . . . . . . . . . . . . . . 23

Chronology of Events Leading to Secession Crisis,

A merican Historical Association https://www.
historians.org/teaching-and-learning/teaching-
resources-for-historians/sixteen-months-
to-sumter/chronology . . . . . . . . . . . . . . . . . . . . . . . . . 27

Cong. Globe, 39th Cong., 1st Sess. 2918

(May 31, 1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ix

Cited Authorities
Page
John Eastman’s Second Memo on “January 6
Scenario,” Wash. Post (Oct. 29, 2021), https://www.
washingtonpost.com/context/john-eastman-s-
second-memo-on-january-6-scenario/b3fd2b0a-
f931-4e0c-8bac-c82f13c2dd6f/ . . . . . . . . . . . . . . . . . . 15

J. Elliot, The Debates in the Several State

Conventions (J. Elliot ed., 2d ed. 1836) . . . . . . . . . . . 25

J. Heilpern & M. Worley, Evidence that the President

Is an “Officer of the United States” for Purposes
of Section 3 of the Fourteenth Amendment
(Jan. 1, 2024) https://papers.ssrn.com/sol3/
Delivery.cfm/SSRN_ID4681108_code2677999.
pdf?abstractid=4681108&mirid=1 . . . . . . . . . . . . . . 22

S. Johnson, A Dictionar y of the English

Language (4th ed. 1773) . . . . . . . . . . . . . . . . . . . . . . . 13

P. Keisler & R. Bernstein, Freedom of Speech Doesn’t

Mean What Trump’s Lawyers Want It to Mean,
Atlantic (Feb. 8, 2021) https://www.theatlantic.
com/ideas/archive/2021/02/first-amendment-
no-defense-against-impeachment/617962/ . . . . . . . . 32

J. Kent, Commentar ies on A mer ican Law

(11th ed. 1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

James Madison, Federalist No. 48 . . . . . . . . . . . . . . . . . 17

James Madison, Federalist No. 78 . . . . . . . . . . . . . . . . . 17

x

Cited Authorities
Page
J. McPherson, Battle Cry of Freedom (1988) . . 20, 27, 28

M ic h a el Penc e , V ic e P r e s ident ’s L et t er
to Congress (January 6, 2021), https://int.
nyt.com/data/documenttools/pence-letter-
on-v p -a nd- cou nt i ng- elect ora l-vot es /
9d6f117b6b98d66f/full.pdf . . . . . . . . . . . . . . . . . . . . . 23

R. Parloff, What Scalia Thought About Whether

Presidents Are “Officers of the United
States,” L aw fa re (Ja n . 24, 2024) https://
www.lawfaremedia.org/article/what-justice-
scalia-thought-about-whether-presidents-
are-officers-of-the-united-states . . . . . . . . . . . . . . . . 22

A. Scalia & B. Garner, Reading Law (2012) . . . . . . 19, 23

Ilya Somin, Insur rection , Rebellion , and

January 6: Rejoinder to Steve Calabresi,
R ea son (Jan. 6, 2024) https://reason.com/
volokh/2024/01/06/insurrection-rebellion-
and-january-6-rejoinder-to-steve-calabresi/
?itm_source=parsely-api . . . . . . . . . . . . . . . . . . . . . . 25

South Carolina convention, Declaration of the

Immediate Causes Which Induce and Justify
the Secession of South Carolina from the
Federal Union https://www.learningforjustice.
org/classroom-resources/texts/hard-history/
declaration-of-the-immediate-causes-which-
induce-and-justify-secession . . . . . . . . . . . . . . . . . . . 27
xi

Cited Authorities
Page
2 J. Story, Commentaries on the Constitution
§ 831 (1833) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

J. Story, Commentaries on the Constitution of

the United States § 423 at 300 (2d ed. 1858) . . . . . . 19

St. George Tucker, Blackstone’s Commentaries:

With Notes of Reference to the Constitution and
Laws of the Federal Government of the United
States and of the Commonwealth of Virginia,
App. 200-205 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Reconstruction Acts,

12 Op. Att’y Gen. 141 (1867) . . . . . . . . . . . . . . . . . . . . 29

The Reconstruction Acts,

12 Op. Att’y Gen. 182 (1867) . . . . . . . . . . . . . . . . . . . . 29

Washington’s Farewell Address (1796) https://

www.govinfo.gov/content/pkg/GPO-CDOC-
106sdoc21/pdf/GPO-CDOC-106sdoc21.pdf . . . . . . . 26
1

INTEREST OF AMICI CURIAE

The amici listed in Appendix A submit this brief.

Amici include former officials who worked in the last six
Republican administrations, senior officials in the White
House and Department of Justice, and others who support
a strong, elected Presidency.1 Reflecting their experience,
amici have an interest in defending the peaceful transfer
of power to a newly-elected President that is required by
Article II and the Twelfth and Twentieth Amendments
and is protected against insurrection by Section 3 of the
Fourteenth Amendment. Amici speak only for themselves
personally and not for any entity or other person.

INTRODUCTION AND SUMMARY OF

ARGUMENT

This brief focuses on two textualist points. First, it

would violate the rule of law and textualism for this Court
to create an off-ramp to avoid adjudicating whether Mr.
Trump is disqualified. The power to decide a dispute about
a presidential candidate’s constitutional qualifications
is a judicial power that has been vested by the Electors
Clause initially in the States, and by Article III’s grant
of appellate jurisdiction ultimately in this Court. Section
5 of the Fourteenth Amendment merely gives Congress
power to legislate a judicial enforcement mechanism in
addition to this pre-existing judicial power of the States
and this Court.

1. Amici state that no counsel for any party authored this brief
in whole or in part, and that no entity, other than amici and their
counsel, made any monetary contribution toward the preparation
or submission of this brief.
2

Mr. Trump does not argue that the Constitution gives

Congress judicial power over a presidential qualifications
dispute. Section 5 of Article I gives Congress the power
only to “be the Judge of the . . . Qualifications of its own
Members.” In contrast, Section 3 of the Fourteenth
Amendment merely checks the judicial power of the
courts by giving Congress the power by two-thirds vote
to remove, for any reason, disqualification under Section
3, even after it has been judicially adjudicated.

Second, the terms of Section 3 of the Fourteenth

Amendment disqualify Mr. Trump. The Court should heed
the warning of Justice Holmes that cases of “immediate
overwhelming interest” often “make bad law.” Northern
Sec. Corp. v. United States, 193 U.S. 197, 400-01 (1904)
(Holmes, J., dissenting). Particularly because Section
3 emerged from the hallowed ground of the Civil War,
this Court must accord Section 3 its fair meaning, not a
narrow construction. Mr. Trump was “President of the
United States.” U.S. Const. art. II, § 1, cl. 1. He never
disputes that the President is an “officer.” It follows, as
the Fourteenth Amendment generation understood, that
the “President of the United States” is an “officer of the
United States.” Mr. Trump incited, and therefore engaged
in, an armed insurrection against the Constitution’s
express and foundational mandates that require the
peaceful transfer of executive power to a newly-elected
President. In doing so, Mr. Trump disqualified himself
under Section 3.
3

ARGUMENT

I. STATE COURTS AND THIS COURT HAVE

T H E J U DICI A L P OW ER T O DECI DE A
PRESIDENTIAL DISQUALIFICATION DISPUTE.

Resolving individual disputes of a presidential

candidate’s qualifications is an exercise of judicial power.
Under federalism and separation of powers, state and
federal courts exercise judicial power, except for Article
I’s two grants of enumerated judicial powers to Congress.
Neither of those grants even arguably applies here. And
no constitutional amendment changes the allocation of
judicial power here.

A. The Electors Clause Allocates This Power To

The States, Subject To This Court’s Article III
Judicial Review.

The Constitution limits Congress to the two judicial

powers enumerated in Article I. The founding generation
understood this. The oft-cited treatise of St. George
Tucker explained that the Constitution vested

[t]he judicial powers (except in the cases

particularly enumerated in the first article) in
the courts; the word the, used in defining the
powers of the executive, and of the judiciary,
is, with these exceptions, co-extensive in its
signification with the word all: . . . .

[Congress] is neither established as [a judicial

court] by the constitution (except in respect to
its own members,) nor has it been, nor can it be
4

established by authority of congress; for all the

courts of the United States must be composed
of judges commissioned by the president of the
United States, and holding their offices during
good behaviour, and not by the unstable tenure
of biennial elections.

St. George Tucker, Blackstone’s Commentaries: With

Notes of Reference to the Constitution and Laws of the
Federal Government of the United States and of the
Commonwealth of Virginia, App. 200-205 (1803) (first
and last emphasis added).

The constitutional provisions on impeachment provide

one of only two “particularly enumerated” grants of
judicial power to Congress. Article I, section 3, clause 6
states: “The Senate shall have the sole Power to try all
Impeachments.” (Emphasis added). Clause 6 also refers to
the person subject to impeachment being “convicted” by
“the Concurrence of two thirds of the Members present.”
And the next clause refers to “Judgment in Cases of
Impeachment.” Article II, Section 4, in turn subjects to
Impeachment “[t]he President, the Vice President, and
all civil Officers of the United States.”

In contrast, in the second grant of an enumerated

judicial power to Congress, the Constitution gives
Congress no judicial power concerning the President, the
Vice President, and all civil officers. This second grant is
in Section 5 of Article I: “Each House shall be the Judge
of the Elections, Returns and Qualifications of its own
Members[.]” (Emphasis added). Justice Story explained
the reason that this judicial power concerning “Members”
was given to Congress: “If lodged in any other, than the
5

legislative body itself, its independence, its purity, and

even its existence and action may be destroyed, or put
into imminent danger.” 2 J. Story, Commentaries on the
Constitution § 831 (1833).

As the text of Article I, Section 5 confirms, this

rationale does not support any power of Congress to “be
the Judge of the . . . Qualifications of” the President or
any officer of the United States. The founding generation
would have considered it unthinkable to give Congress
an unreviewable power, by a bare majority, to disqualify
a President or a cabinet member when the facts or legal
principles are in dispute. As James Madison explained
in Federalist No. 48: “The legislative department is
everywhere extending the sphere of its activity, and
drawing all power into its impetuous vortex.” Madison
warned against “legislative usurpations, which, by
assembling all power in the same hands, must lead to the
same tyranny as is threatened by executive usurpations.”
He thus stated that the Constitution did not make
“[t]he judiciary and executive members . . . dependent
on the legislative . . . for their continuance in” office. Id.
(emphasis added). “An ELECTIVE DESPOTISM was not
the government we fought for;” but rather the founding
generation fought for a government with the “effectual[]
check[s] and restraint[s]” of separation of powers. Id.

In Section 5 of Article I, however, the word “Judge”

does reflect the founding generation’s understanding
that it is an exercise of judicial power to decide disputed
factual and legal questions about whether a particular
person is qualified to hold office. Accordingly, Barry v.
United States ex rel. Cunningham, 279 U.S. 597 (1929),
holds that when a house of Congress exercises power over
6

a dispute about “elections, returns, and qualifications”

of that house’s members, that house “acts as a judicial
tribunal.” Id. at 616. The power to decide such a dispute
is “judicial in character,” and its exercise “necessarily
involves the ascertainment of facts . . . to determine the
facts and to apply the appropriate rules of law, and, finally,
to render a judgment . . . .” Id. at 613. Before Barry,
Thomas v. Loney, 134 U.S. 372 (1890), also had held that
Section 5 of Article 1 gives each House “judicial power”
and each House acts as a “judicial tribunal.” Id. at 374-
75. Although Barry and Loney involved elections, their
rationale expressly applied to qualifications as well. As it
must, because “Judge” in Article I, Section 5 applies to
“Elections, Returns and Qualifications.”

In stark contrast to congressional qualifications,

the Constitution confers the judicial power to adjudicate
presidential qualifications first on the state officials and
courts designated by state law, and ultimately on the
Supreme Court. To start, the Electors Clause in Article
II, Section 1 confers power on each State to “direct”
the “Manner” of “appoint[ing]” presidential electors.
Each state’s “far-reaching authority over presidential
electors,” Chiafalo v. Washington, 140 S. Ct. 2316, 2324
(2020), includes the “power to impose conditions on
the appointment of electors,” id. at 2324 n.6. Thus, “a
state’s legitimate interest in protecting the integrity and
practical functioning of the political process permits it to
exclude from the ballot candidates who are constitutionally
prohibited from assuming office.” Hassan v. Colorado, 495
F. App’x 947, 948 (10th Cir. 2012) (Gorsuch, J.) (emphasis
added). The Electors Clause also gives each state the
power to authorize state officials and state courts “to
oversee election disputes,” Bush v. Gore, 531 U.S. 98,
7

113-14 (2000) (Rehnquist, C.J., concurring). A dispute

over a presidential candidate’s qualifications under federal
law is certainly one very important kind of presidential
election dispute.

Even without the Electors Clause, as a matter of

federalism, generally state law may authorize state courts
to interpret and apply “federal law,” even when Congress
has not created a justiciable cause of action. ASARCO Inc.
v. Kadish, 490 U.S. 605, 617 (1989). The only exception is
when the Constitution or a valid federal statute contains
“a provision for exclusive federal jurisdiction.” Id.

Section 2 of Article III of the Constitution directly

gives the Supreme Court appellate jurisdiction, “both as
to law and fact,” of “all cases, in law and equity, arising
under this Constitution, [and] the laws of the United
States,” except in cases where this Court has original
jurisdiction. The ubiquitous “all cases” include disputes
in state court raising federal issues about a presidential
candidate’s qualifications under the Constitution.2 As Bush
v. Gore held, when disputes arise relating to a presidential
election, after initial resolution by the state officials or
state courts designated by state law, it is “our unsought
responsibility to resolve the federal and constitutional
issues the judicial system has been forced to confront.”
531 U.S. at 111 (per curiam) (emphasis added). After that
resolution, the Constitution’s Supremacy Clause mandates
that all state legislatures, officials, and courts abide by

2. Cong ress has the power to make “Exceptions” and

“Regulations” to this Court’s appellate jurisdiction. U.S. Const. art.
III, § 2, cl. 2. Congress has not done either concerning presidential
disqualifications. See 28 U.S.C. § 1257.
8

final Supreme Court rulings on issues of federal law.

Cooper v. Aaron, 358 U.S. 1, 4, 18-20 (1958).

To summarize, under the Electors Clause and

federalism, state courts and election officials initially have
authority to adjudicate whether a candidate for President
is disqualified by the Constitution. Next, under Article
III’s authorization of appellate jurisdiction and 28 U.S.C.
§ 1257, this Court reviews such a ruling and makes the
final judicial decision whether a presidential candidate is
disqualified. Finally, under the Supremacy Clause, the
Supreme Court’s ruling is binding in all 50 States. That
refutes any suggestion that only Congress can prevent
inconsistent rulings between courts in different states on
whether a presidential candidate is disqualified.

B. No Amendment Repeals This Allocation Of

Judicial Power.

Nothing in any constitutional amendment limits the

pre-existing power of state courts and ultimately the
Supreme Court to adjudicate a presidential qualifications
dispute before the election. And Mr. Trump does not argue
that any constitutional amendment confers a power on
Congress to adjudicate this case of disputed presidential
qualifications.

1. Section 5 of the Fourteenth Amendment: Section

5 states: “The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.”
(Emphasis added). Nothing in these fifteen words deprives
the states of their pre-existing power, subject to this
Court’s review, to adjudicate a presidential candidate’s
constitutional qualifications. See Part I.A., supra. Section
9

5 says “power,” not “the power”—much less “exclusive” or

“sole power.” Compare Art. I, § 2, cl. 5, and § 3, cl. 6. (“the
sole Power”); Art. I, § 8, cl. 17 (“exclusive Legislation”).
Nor does Section 5 state “No State shall” as Section 1 does.
See also Art. I, § 10 (“No State shall” used for more than
15 prohibitions). Nor does one word in Section 5 permit any
distinction between Congress’s power to enforce Section
3 versus Section 1. Rather, as to Section 3 and Section 1,
Section 5 gives Congress “power” to legislate an additional
enforcement mechanism, and does not negate the pre-
existing adjudicatory power of state courts, subject to
Supreme Court review, to enforce the Constitution.

For similar reasons, Mr. Trump misplaces reliance on

In re Griffin, 11 F. Cas. 7 (Cir. Ct. D. Va. 1869). Nothing
in Griffin involved, addressed, or limited either a state
court’s pre-existing power under the Electors Clause to
decide a presidential qualifications dispute or this Court’s
Article III appellate jurisdiction over such a state court
decision.

Mr. Trump is also wrong that 18 U.S.C. § 2383 “is

the exclusive means of enforcing section 3.” Pet’r’s Br. at
40. Like most criminal statutes, Section 2383 contains
nothing like an exclusive jurisdiction provision. And it
was originally adopted in the Second Confiscation Act
of 1862, 12 Stat. 589, before the Fourteenth Amendment
was enacted.

Moreover, exclusive federal court jurisdiction

concerning who is eligible to be elected President would
be in tension with the powers that the Electors Clause
confers on States, but not Congress. The Electors Clause
contrasts with the Elections Clause in Article I, Section 4,
10

Clause 1. The Elections Clause gives Congress power to

“make or alter . . . regulations” on the “Manner” of holding
congressional elections, but the Electors Clause gives
Congress no such power concerning presidential elections.
Shelby County v. Holder, 570 U.S. 529 (2013), held that
Congress’s power under Section 2 of the Fifteenth
Amendment to enact “appropriate legislation” does not
authorize legislation that violates federalism. Id. at 538,
543. For similar reasons, it would not be “appropriate
legislation” under Section 5 of the Fourteenth Amendment
for a statute to nullify a state court’s traditional power
to decide a presidential qualification dispute, subject to
Supreme Court review.

Finally, Mr. Trump does not argue that Section 5

confers any judicial power on Congress. “[L]egislation”
is a product of legislative power, not judicial power.
And, unlike an adjudication, the Constitution, in Article
1, Section 7, Clause 2, requires that all legislation be
presented to the President for signature or veto.

2. Section 3 of the Fourteenth Amendment: The last

sentence of Section 3 reads: “But Congress may by a vote
of two-thirds of each House, remove such disability.” The
words “[b]ut” and “remove” connote that the disability
existed before Congress votes.

Mr. Trump does not argue that the last sentence

of Section 3 confers a power on Congress to adjudicate
whether there was a disability before its removal. See
Pet’r’s Br. at 41-42. Indeed, “vote” to “remove such
disability” in Section 3 stands in stark contrast to
“Judge” in Article I, Section 5 and “try,” “convicted,”
and “Judgment” in Article I, Section 3, clauses 6 and
11

7. See supra, at pp. 4-6. Two-thirds of Congress may

“vote” to remove a pre-existing disability for any reason,
including that the disqualified person has reformed or
for pure politics. And Congress need not hear evidence
or otherwise satisfy procedural due process.

Mr. Trump instead argues that the combination in

Section 3 of the phrase “hold any office” and Congress’s
power by two-thirds “vote” to “remove such disability”
nullifies a state court’s power to adjudicate (subject to
this Court’s review) a Section 3 presidential qualification
dispute before election day. Pet’r’s Br. at 41-46. This is
wrong. To start, courts may adjudicate before election day
three other presidential disqualifications that use “hold”
or similar words. First, a criminal conviction under 18
U.S.C. § 2383 for insurrection renders a person “incapable
of holding any office under the United States.” Neither
Mr. Trump nor anyone else suggests that such a federal
criminal case cannot be adjudicated before election day.

Second, the Twenty-Second Amendment states, “[n]o

person shall be elected to the office of the President more
than twice.” A President is “elected” under Article III,
Section 1 and the Twelfth Amendment no earlier than
when “[t]he Electors . . . vote by ballot for President” in
mid-December. See Chiafalo, 140 S. Ct. at 2321, 2325 (the
electors “do indeed elect a President”). Obviously, the
Twenty-Second Amendment does not render a state court
powerless before election day to prevent Barack Obama
and George W. Bush from running on that state’s ballot
for a third term.

Third, Article I, Section 3, Clause 7 gives the Senate

power, after impeachment and conviction, to enter a
12

judgment of “disqualification to hold and enjoy any

Office of honor, Trust or Profit under the United States.”
(Emphasis added.) Of course, a state may give its courts
power to enforce this “disqualification to hold” by barring
a disqualified person from running.

Equally unavailing is Mr. Trump’s reliance on the

fanciful possibility that Congress by two-thirds vote might
remove his disability. This does not deprive the courts of
their traditional ability to adjudicate a disqualification
before election day. In the other instances discussed
above—the bars of 18 U.S.C. § 2383, the Twenty-Second
Amendment, and disqualification by the Senate—the
candidate could assert an equally unlikely fantasy that
two-thirds of Congress might propose and the States
might ratify a constitutional amendment that removes
the disability.

Rather, the words “remove such disability” in the

Fourteenth Amendment confirm that the candidate is
currently disqualified and will remain disqualified, unless
and until there is an affirmative vote by two-thirds of
Congress to “remove” that disqualification. It makes no
sense to put off the judicial determination of whether
someone is qualified, and the potential subsequent removal
of the disability by Congress, until after the election has
been run. That would deprive voters of the ability to
make a truly informed decision, because they could not
know if they were voting for someone who cannot serve.
And it would risk chaos as courts litigate whether a
newly-inaugurated President is disqualified at the same
time the country needs a President to be indisputably
occupying the office and making enormously consequential
decisions—including as commander-in-chief, appointer of
13

cabinet members, leader of the executive branch, vetoer

of bills, etc. It is difficult to believe that the framers of
the Fourteenth Amendment added Section 3 intending
that the new clause operate in a way that deprives both
voters of the ability to make an informed decision and
ultimately-eligible Presidents of the ability to govern
effectively from the outset.

3. The Twelfth Amendment: Mr. Trump does not

argue that the Twelfth Amendment deprives state courts
or this Court of jurisdiction to decide this case or gives
Congress power to do so. The Twelfth Amendment left
the Electors Clause intact. See McPherson v. Blacker,
146 U.S. 1, 26 (1892). Under the Electors Clause, each
state “exclusively,” id. at 27, makes the “apportionment of
responsibility” as to which bodies “oversee [presidential]
election disputes.” Bush v. Gore, 531 U.S. at 113-14
(Rehnquist, C.J., concurring). Here, the Colorado
Supreme Court properly ruled that Colorado’s statutes
apportioned the authority to decide this presidential
disqualification dispute to Colorado’s Secretary of State
and state courts, subject to this Court’s review.

The Twelfth Amendment vests no power in Congress

to judge a dispute about a presidential candidate’s
qualifications if, as here, (1) there are disputed facts or
disputed legal questions and (2) state courts, subject to
this Court’s review, have the power to adjudicate the
dispute. The Twelfth Amendment repeats the words in
the original Article II, Section 1, Clause 3, that after the
certificates of electoral votes are opened, “the Votes shall
then be counted.” The phrase “shall then be counted”
refers to calculating. See S. Johnson, A Dictionary of the
English Language (4th ed. 1773) (the verb “count” means
14

“To number; to tell.”). “[S]hall then be counted” does

not suggest a power of Congress to act as a court that
substitutes for, or overrides, state courts or this Court.

The phrase “shall then be counted” contrasts sharply

with the express power to “Judge” given by Article I,
Section 5 to Congress but concerning only congressional
elections and qualifications. “[S]hall then be counted”
also contrasts with the broader word “determine” that
Article II, Section 1, Clause 4 employed to give Congress
other powers concerning a state’s conducting of a
presidential election. Clause 4 provides: “The Congress
may determine the Time of chusing the Electors, and the
Day on which they shall give their Votes . . . .” Article II,
Section 1, Clause 3, would not have used, and the Twelfth
Amendment would not have repeated, the very different
and narrower word “counted” to give Congress judicial
powers to act as a substitute court for, or override, state
courts or this Court concerning disputed presidential
election results and qualifications.

The Court should ensure that nothing in its decision

uses the Twelfth Amendment, or 3 U.S.C. § 15, to
undermine the authority of each State, through its
courts and election officials, to resolve disputes arising in
connection with a presidential election, subject to review
by this Court, rather than Congress. Only three years ago,
Mr. Trump and his former counsel argued that the Twelfth
Amendment conveys to the Vice President the ultimate
power to override state court decisions and adjudicate
who won a state’s electoral votes. See John Eastman’s
Second Memo on “January 6 Scenario,” Wash. Post (Oct.
15

29, 2021) (linking to memo). 3 Let’s not go anywhere near

there again.

4. The Twentieth Amendment: Mr. Trump’s brief

does not argue that the Twentieth Amendment has
any bearing on this case. Section 3 of the Twentieth
Amendment does not restrict the pre-existing power
of state courts and the Supreme Court to adjudicate a
presidential qualification dispute before election day. Nor
does it assign any judicial power to Congress. Instead,
it specifies that, on inauguration day, “if the President
elect shall have failed to qualify, then the Vice President
elect shall act as President until a President shall have
qualified.” The use of “shall have failed” connotes that the
putative President has failed to qualify without Congress
doing anything. Again, Congress is given no power to
“try” and “Judge” or anything that suggests a power to
adjudicate. Moreover, the Twentieth Amendment was
passed by Congress in March 1932, only three years after
Barry v. United States ex rel. Cunningham, supra. If the
Twentieth Amendment’s framers had intended to expand
Congress’s limited judicial power to “Judge” beyond the
“Qualifications of its own Members,” U.S. Const. art. I,
§ 5, to also include judicial power to judge the disputed
qualifications of the President and Vice President, surely
the Twentieth Amendment would say so expressly.

3. Available at https://www.washingtonpost.com/context/john-
eastman-s-second-memo-on-january-6-scenario/b3fd2b0a-f931-
4e0c-8bac-c82f13c2dd6f/ (last visited Jan. 15, 2024).
16

C. The Political Question Doctrine Does Not

Apply.

Mr. Trump correctly does not argue that his case

presents a nonjusticiable political question. First, there is
no textual commitment by the Constitution to Congress of
the power to adjudicate a presidential candidate’s disputed
qualifications. The constitutional text shows the exact
opposite. Part I.A–B, supra.

Second, there are judicially manageable standards

for “insurrection against the” Constitution. See Part II.C,
infra. Applying that term has a much firmer grounding
in text and history than did applying “equal protection”
to vote counting in Bush v. Gore. See 531 U.S. at 109
(“The contest provision, as it was mandated by the State
Supreme Court, is not well calculated to sustain the
confidence that all citizens must have in the outcome of
elections.”); id. at 106-07.

Moreover, if there were no judicially manageable

standards here, that would render unconstitutional 18
U.S.C. § 2383—which applies to “insurrection against
the authority of the United States or the laws thereof.”
And that statute is what Mr. Trump (incorrectly) argues
is the proper and “exclusive means of enforcing section
3.” Pet’r’s Br. at 40.

D. Federalism And Separation Of Powers Support

Traditional Court Adjudication Rather Than
Sole, Unreviewable Congressional Power.

Mr. Trump’s amici claim that if his conduct disqualifies

him, then Section 3 of the Fourteenth Amendment would
17

be weaponized against others by partisan state courts

and state officials. Such an anti-textual, policy argument
has no place in this Court’s constitutional jurisprudence.
As this Court held in Dobbs v. Jackson Women’s Health
Organization, 597 U.S. 215 (2022), “we cannot allow
our decisions to be affected by extraneous influences,”
including how the public and politicians may react. Id. at
291-92.

Moreover, Mr. Trump’s amici have the weaponization

risk upside down. First, the court process that the
Constitution requires for adjudication of a presidential
qualification dispute provides the safeguards and checks
of the rule of law, federalism, and separation of powers.
This includes evidence, procedural due process, recusals
of adjudicators for bias, a ban on ex parte contacts, lower
court review, the final judicial decision by the Supreme
Court, and potential removal of a disqualification by a
two-thirds vote of Congress.

Particularly important is the responsibility of every

Supreme Court Justice to fulfill his or her solemn oath or
affirmation to “faithfully and impartially discharge and
perform all the duties incumbent upon me as Justice under
the Constitution and the laws of the United States. So help
me God.” 28 U.S.C. § 453 (emphasis added). As Alexander
Hamilton explained in Federalist No. 78, Justices—unlike
politicians—have life tenure so that they will fulfill that
responsibility.

Second, in contrast, if Congress has unreviewable

power over Section 3 disqualifications, as some advocate,
see Cruz Amici Br. at 12-13; Meijer Amicus Br. at 4-15, that
would lack all the safeguards and checks of the rule of law,
18

federalism, and separation of powers. Congress consists

of partisan politicians. There would be no requirements
for evidence, procedural due process, recusals for bias, or
bans on ex parte contacts. Nor any role for the states or
another branch of the federal government.

As bad, any exclusive, unreviewable power of

Congress to adjudicate non-member disqualifications
would go both ways. A bare majority in both houses of
Congress could ignore even the clearest of presidential
disqualifications—a third presidential term—without any
possibility of review by the courts.

Perhaps worse, a bare partisan majority, freed from

any possible judicial scrutiny, also could improperly
and expansively torture the meaning of “giv[ing] aid or
comfort to the enemies [of the Constitution]” in Section 3
of the Fourteenth Amendment to disqualify many citizens
from running for or serving in Congress or “any office,
civil or military, under the United States, or under any
State.” Among others, “Judges of the Supreme Court”
are “officers of the United States.” U.S. Const. art. II,
§ 2, cl. 2. An unreviewable Congress could disqualify a
President, cabinet member, Justice, or anyone holding
another covered federal or state position—including long
after assuming office. Congress would have no reason
to use the impeachment process, with its now-pointless
requirement of a two-thirds concurrence in the Senate
to convict.

Nothing could be more contrary to federalism and

separation of powers than giving a bare majority in
Congress such partisan power with no possibility of veto
or review by this Court. The Constitution “divides power
19

among sovereigns and among branches of government

precisely so that we may resist the temptation to
concentrate power in one location as an expedient solution
to the crisis of the day.” New York v. United States,
505 U.S. 144, 187 (1992). This is especially prudent in
our divided era, where members of Congress routinely
censure each other, vote against confirming Justices on
partisan grounds, and vote on impeachment on party lines.

II. T H E FA I R M E A N I N G O F S E C T I O N 3
DISQUALIFIES FORMER PRESIDENT TRUMP.

A. Section 3 Must Be Accorded Its Fair Meaning,

Not A Narrow Construction

The “textualist’s touchstone” is to give every

constitutional provision its “fair meaning.” A. Scalia &
B. Garner, Reading Law 356 (2012) (“Reading Law”)
(emphasis in original). A narrow construction to promote
judicial restraint is just as bad as an “unreasonably . . .
enlarged” construction. Id. at 355-56. Scalia and Garner
approvingly quote Justice Story that it is forbidden to
narrowly construe a constitutional provision “‘as if it were
subversive of the great interests of society, or derogated
from the inherent sovereignty of the people.’” Id. at 355
(quoting 1 J. Story, Commentaries on the Constitution
of the United States § 423, at 300 (2d ed. 1858)). Every
provision of the Constitution is part of “the supreme Law
of the Land,” U.S. Const. art. VI, cl. 2, not the inferior
law of the land.

The duty to use “ fair meaning” is especially

compelling for Section 3 of the Fourteenth Amendment
for two reasons. First, Section 3 has life only because it
20

applies fully to those who violate its terms and still retain
or regain enough popularity potentially to be elected or
be appointed by elected officials. Section 3 would be a
dead letter if the Court refused to apply it because an
insurrectionist had popularity with large numbers of
voters. Just as “it is not the role of this Court to pronounce
the Second Amendment extinct,” District of Columbia v.
Heller, 554 U.S. 570, 636 (2008), it is not the role of this
Court to render Section 3 extinct.

Second, the Civil War generation recognized that what

started as an insurrection in a single state—the secession
of South Carolina in December 1860—had metastasized
into a Civil War. See The Brig Amy Warwick (The Prize
Cases), 67 U.S. 635, 666 (1862) (“a civil war always begins
by insurrection”). “More than 620,000 soldiers lost their
lives in four years of conflict—360,000 Yankees and
at least 260,000 rebels.” J. McP herson, Battle Cry
of Freedom 854 (1988) (“Battle Cry”). Section 3 of the
Fourteenth Amendment was the Civil War generation’s
powerful deterrent to ensure that even an at-first localized
insurrection would never again happen. See, e.g., Cong.
Globe, 39th Cong., 1st Sess. 2918 (May 31, 1866) (Sen.
Willey) (Section 3 “is a measure of self-defense. . . .
[L]ooking to the future peace and security of the
country.”). That deterrent worked for over 150 years. The
task of interpreting that deterrent commands respect.

Finally, there are no special interpretive rules for

the many constitutional provisions that render millions of
citizens unable to be President, or to hold other federal
offices. R. Bernstein, “Lots of People Are Disqualified
21

from Becoming President,” Atlantic (Feb. 4, 2021). 4

Section 3 and these other provisions are not improperly
anti-democratic, but rather they set forth foundational
rules of the Republic adopted by the People through
ratification.

Indeed, the Electoral College is a similar foundational

rule. The Electoral College has prevented the People’s
first choice—the winner of the national popular vote—
from being President five times (1824, 1876, 1888, 2000,
and 2016).

Not much would remain of our Constitution if this

Court narrowly enforced the Constitution’s provisions
when they potentially frustrate large numbers of voters.
The Electoral College, separation of powers, bicameralism,
six-year rotating terms for Senators, judicial review, the
First Amendment, the Second Amendment, and the many
Amendments protecting criminal defendants—and much
more—often lead to binding results that are contrary to
the majority preferences of voters in many states and
nationwide.

B. The “President Of The United States” Is An

“[O]fficer of the United States.”

This brief will not repeat the overwhelming support

that in 1868—the pertinent time—there was widespread
understanding that “the President of the United States,”
U.S. Const. art. II, § 1, cl. 1 (emphasis added), is an “officer

4 . Av a i l a b l e a t ht t p s: // w w w.t he a t l a nt i c . c o m / i d e a s /
archive/2021/02/ trump-disqualification-president/617908/ (last
visited Jan. 13, 2024).
22

of the United States.” See, e.g., Pet. App. at 70a-76a, ¶¶ 144-

160; J. Heilpern & M. Worley, Evidence that the President
Is an “Officer of the United States” for Purposes of Section
3 of the Fourteenth Amendment (Jan. 1, 2024);5 1 J. K ent,
Commentaries on A merican Law 334 (11th ed. 1866) (“The
President is the great responsible officer for the faithful
execution of the law . . . .” (emphasis added)).

Mr. Trump never disputes that the President is an

“officer.” See Pet’r’s Br. at 24. Indeed, Mr. Trump concedes
that the “Presidency is obviously an ‘office’” and the
President is an “officeholder[].” Id. at 25-26, 28. His entire
argument is “that the president is not an ‘officer of the
United States.’” Id. at 20. But Article II does not define
the President as merely “the president” full stop. The first
sentence of Article II instead refers to the “President of
the United States of America.” (Emphasis added).6 Given
that there is no dispute that the President is an officer,
the President must be an officer “of the United States of
America.” Mr. Trump never suggests any other entity of
which the President is an officer.

Mr. Trump’s brief, at 20-21, misplaces reliance on the

use of “Officers of the United States” in three clauses of
the Constitution as ratified in 1788. To start, others have
demonstrated that these clauses support affirmance or
are distinguishable. See, e.g., Anderson Br. at 39-43; R.
Parloff, What Scalia Thought About Whether Presidents
Are “Officers of the United States,” Lawfare (Jan. 24,

5. Available at https://papers.ssrn.com/sol3/ Delivery.cfm/

SSRN_ID4681108_code2677999.pdf?abstractid=4681108&mirid=1.

6. Art, I, § 3, cl. 4 likewise refers to “[t]he Vice President of

the United States.”
23

2024);7 Samuel Bray, “Officer of the United States” in

Context, Reason (Jan. 22, 2024);8 Amar Amici Br. at 18-
21. Moreover, “context” means that “the same word or
phrase” may have different interpretations in different
documents. Reading Law, at 323.

Most impor tant, Section 3 of the Four teenth

A mendment must be interpreted in light of “ the
understandings of those who ratified it.” N.Y. State
Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 28 (2022).
The understanding of Section 3’s terms around 1868 is
dispositive because, as Reading Law recognizes, over
time, words and phrases have “shifts in meaning.” Reading
Law, at 419. This “historical development of word-senses”
is why this seminal treatise has different listings for
different groups of dictionaries for every 50-year period
starting with “1750-1800” through “2001-present.” Id. at
419-25.

Ultimately, Mr. Trump is wrong, and former Vice

President Pence was right. On January 6, 2021, when Vice
President Pence refused to violate “my oath,” he wrote:
“The President is the chief executive officer of the Federal
Government under our Constitution.” 9

7. Available at https://www.lawfaremedia.org/article/what-
justice-scalia-thought-about-whether-presidents-are-officers-of-
the-united-states.

8. Available at https://reason.com/volokh/2024/01/22/officer-
of-the-united-states-in-context/.

9. Available at https://int.nyt.com/data/documenttools/pence-
letter-on-vp-and-counting-electoral-votes/9d6f117b6b98d66f/full.
pdf.
24

C. The Januar y 6, 2021 Armed Attempt To

Prevent The Peaceful Transfer Of Executive
Power Was An “Insurrection . . . Against The”
Constitution.

Mr. Trump avoids addressing whether, on January

6, 2021, there was “an insurrection . . . against” “the
Constitution of the United States.” There was. Mere
political violence—such as violence connected with a KKK
or BLM rally—is not, without more, “an insurrection . . .
against” the Constitution. But here there was much more.
The Colorado Supreme Court correctly held that there
was an insurrection because there was a threatened and
actual violent armed attempt by a large group of people
“to preclude Congress from taking the actions necessary
to accomplish a peaceful transfer of [executive] power.”
Pet. App. at 86a-89a, ¶¶ 184-189.

The peaceful transfer of executive power is not merely

a norm or tradition. It is the foundational mandate of
Article II of the Constitution. Section 1, Clause 1 of Article
II, often called the Executive Vesting Clause, provides:

The executive Power shall be vested in a

President of the United States of America. He
shall hold his Office during the Term of four
Years, and, together with the Vice President,
chosen for the same Term, be elected, as follows.

(Emphases added.)

As Edmund Randolph explained to the Virginia

Ratifying Convention, this Executive Vesting Clause
meant that a sitting President “may [not] hold his office
25

without being reelected. He cannot hold it over four

years, unless he be reelected, any more than if he were
prohibited” from running for reelection to a second term.
3 The Debates in the Several State Conventions 486 (J.
Elliot ed., 2d ed. 1836). Randolph stated that a President
who loses re-election is “displaced at the end of the four
years” by the Executive Vesting Clause. Id. And both
Article II, Section 1, Clause 3 and the Twelfth Amendment
state that when the electoral votes are “open[ed]” in
Congress “and the votes shall then be counted,” whichever
candidate has “a majority of the whole number of Electors
appointed,” that candidate “shall be the President.”

As Chief Justice Marshall put it, “the president is

elected from the mass of the people and, on the expiration
of the time for which he is elected, returns to the mass of
the people again.” United States v. Burr, 25 F. Cas. 30,
34 (C.C.D. Va. 1807) (Marshall, Circuit Judge) (emphasis
added). The Twentieth Amendment reiterates the mandate
that a President must peacefully relinquish power to his
or her successor: “The terms of the President and Vice
President shall end at noon on the 20th day of January . . .
; and the terms of their successors shall then begin.”

January 6, 2021 saw an insurrection against the

Constitution because there was a threatened and actual
use of armed force to thwart the counting of electoral votes
that is mandated by the Twelfth Amendment, as part of
the transfer of executive power that is required by the
Executive Vesting Clause and the Twelfth and Twentieth
Amendments. Accord Ilya Somin, Insurrection, Rebellion,
and January 6: Rejoinder to Steve Calabresi, Reason
26

(Jan. 6, 2024).10 First, the ultimate aim of the insurrection

was to extend Mr. Trump’s time as President beyond the
four-year termination required by those constitutional
provisions. “To justify and check” the President’s “unique
[authority] in our constitutional structure,” Article II
“render[s] the President directly accountable to the people
through regular elections.” Seila Law LLC v. Consumer
Fin. Prot. Bureau, 140 S. Ct. 2183, 2203 (2020). The
transfer of executive power after an incumbent President
loses ensures “that here, We the People rule.” Chiafalo,
140 S. Ct. at 2328. As George Washington’s Farewell
Address stated, it would “destroy[]” our constitutional
system if “cunning, ambitious, and unprincipled men will
be enabled to subvert the power of the people and to usurp
for themselves the reins of government.” Washington’s
Farewell Address, at 14 (1796).11

Second, the January 6, 2021 insurrection sought to

prevent the vesting of the authority and functions of the
Presidency in the newly-elected President. The Civil War
generation certainly understood that the threat and use of
force to prevent a newly-elected President from exercising
executive power is an insurrection. Indeed, the activities
of federal officials to prevent Lincoln’s inauguration were
one basis for Section 3 of the Fourteenth Amendment. See
Amar Amici Brief, at 6-16.

10. Available at https://reason.com /volokh /2024 /01/06/

i nsu r rec t ion-rebel l ion- a nd-ja nua r y- 6 -rejoi nder -t o - st eve -
calabresi/?itm_source=parsely-api.

11. Available at https://www.govinfo.gov/content/pkg/GPO-

CDOC-106sdoc21/pdf/GPO-CDOC-106sdoc21.pdf.
27

Moreover, “[t]he event that precipitated secession was

the election of a president by a constitutional majority.”
Battle Cry, at 248. On Nov. 10, four days after Lincoln won,
South Carolina’s legislature called a convention to consider
secession, and both of South Carolina’s U.S. Senators
resigned.12 South Carolina seceded on December 20,
1860. That insurrection was 20 days before the next state
seceded, see Battle Cry, at 235, and ten days before South
Carolinians seized the federal arsenal at Charleston, see
Chronology. The South Carolina convention’s Declaration
of the Immediate Causes Which Induce and Justify the
Secession of South Carolina from the Federal Union
objected to:

the election of a man to the high office of

President of the United States, whose opinions
and purposes are hostile to slavery. He is to
be entrusted with the administration of the
common Government, because he has declared
that that [sic] “Government cannot endure
permanently half slave, half free,” and that the
public mind must rest in the belief that slavery
is in the course of ultimate extinction.13

(Emphasis added.)

12. Chronology of Events Leading to Secession Crisis,

A merican H istorical A ssociation, https://www.historians.org/
teaching-and-learning/teaching-resources-for-historians/sixteen-
months-to-sumter/ chronology (“Chronology”) (last visited Jan. 12,
2024).

13. Available at https://www.learningforjustice.org/classroom-

resources/texts/hard-history/declaration-of-the-immediate-causes-
which-induce-and-justify-secession (last visited Jan. 12, 2024).
28

As on January 6, 2021, the December 20, 1860

insurrection in South Carolina was against the forthcoming
transfer of executive power to a newly-elected President.
The basis of secession was not antipathy towards
Congress. Republicans would not control either chamber
of Congress until much later, in 1861 after secessionist
Senators and representatives resigned. Before these
resignations, one of the anti-secession arguments in the
South was to negotiate because “it will be several years”
before Republicans would control Congress. See Battle
Cry, at 245-46 (quotations and citation omitted). And Chief
Justice Roger Taney, a friend of slavery, still controlled
the U.S. Supreme Court.

Of course, the cause of secessionists was uniquely

odious—to protect slavery. But, in one geographical sense,
Mr. Trump’s insurrection against the Executive Vesting
Clause and the Twelfth and Twentieth Amendments
was broader than the South Carolina insurrection that
triggered the Civil War. Mr. Trump tried to prevent
the newly-elected President Biden from governing
anywhere in the United States. The South Carolina
secession prevented the newly-elected President Lincoln
from governing only in that State. The threat or use of
armed force to prevent a newly-elected President from
exercising executive power, whether on December 20,
1860 or January 6, 2021, is an insurrection against the
Constitution.

D. Mr. Trump “Engaged In” The Insurrection.

Mr. Trump “engaged in” the insurrection because (1)

inciting constitutes engaging in and (2) Mr. Trump incited
the threat and use of violent force as his last opportunity
to stop the peaceful transfer of executive power.
29

First, Attorney General Stanbery informed Congress

that “inciting others to engage,” whether “by speech or by
writing,” requires “disqualification.” The Reconstruction
Acts, 12 Op. Att’y Gen. 182, 205 (1867); The Reconstruction
Acts, 12 Op. Att’y Gen. 141, 164 (1867). This reflected well-
known legal principles, applicable to treason among other
crimes, that a person “is in law guilty of the forcible act”
for “counselling” or “instigating others to perform” the
violent act itself. In re Charge to Grand-Jury Treason,
30 F. Cas. 1047, 1048 (C.C.E.D. Pa. 1851). The Civil War
generation surely understood that the insurrectionists
included instigators of the seizing of federal forts or
the firing on Fort Sumter, even if they let others do the
fighting.

Second, even under de novo review and a clear-and-

convincing evidence standard, Mr. Trump had the intent
that the armed mob, at the very least, threaten physical
force on January 6, 2021 in response to his speech on the
Ellipse. Among other reasons this is clear and convincing
is that Mr. Trump knew he had exhausted all his other
options and yet still insisted he would remain President.

By December 14, 2020, (1) the electors certified by

state officials had cast 306 electoral votes for Joe Biden;
(2) this Court had refused to intervene, see Texas v.
Pennsylvania, 141 S. Ct. 1230 (Dec. 11, 2020); and (3) the
supreme courts in all six swing states had rejected Mr.
Trump’s claims.14 On December 18, Mr. Trump was told by
14. See, e.g., Trump v. Biden, 951 N.W.2d 568, 571-72 (Wis. Dec.
14, 2020) (rejecting challenge concerning indefinitely confined voters
as “wholly without merit”); Trump v. Raffensperger, No. S21M0561
(Ga. Sup. Ct. Dec. 12, 2020) (rejecting writ of certiorari); Johnson
v. Sec’y of State, 951 N.W.2d 310 (Mich. Dec. 9, 2020) (“[T]he Court
30

White House staff that his court challenges had failed. Ex.
78 (finding 171).15 The next day, Mr. Trump issued his first
tweet summoning his supporters en masse to Washington
on January 6, 2021: “Big protest in D.C. on January 6. Be
there, will be wild.” Pet. App. at 93a, ¶ 202. He repeated
this summons “at least twelve times.” Id. at 94a, ¶ 204.

Mr. Trump’s campaign to sway Republican officials to

reverse his loss also had failed before his January 6 speech
on the Ellipse. On December 26, 2020, Mr. Trump himself
tweeted that “Mitch [McConnell] & the Republicans do
NOTHING, just want to let it pass. NO FIGHT!” Id. ¶ 205.
Mr. Trump’s efforts with state Republican governors,
elected officials, and legislators, id. at 92a ¶ 198, had failed
to produce anything. See Ex. 78 (findings 75, 121, 180, 196,
210). Mr. Trump’s own appointees at the Department of
Justice had refused to support, and indeed contradicted,
his false accusations of election fraud. Id. (finding 121).

is not persuaded that it can or should grant the requested relief.”);

Ward v. Jackson, No. CV-20-0343, 2020 WL 8617817, at *2 (Ariz.
Dec. 8, 2020) (unanimously rejecting claims of “misconduct,” “illegal
votes,” and “fraud”); Law v. Whitmer, No. 82178, 477 P.3d 1124 (Nev.
Dec. 8, 2020) (unanimously affirming detailed trial court rejection of
election contest); In re Canvassing Observation, 241 A.3d 339, 350
(Pa. Nov. 17, 2020) (rejecting statutory claims because “[i]t would be
improper for this Court to judicially rewrite the statute by imposing
[observer] distance requirements where the legislature has, in the
exercise of its policy judgment, seen fit not to do so”); In re Canvass
of Absentee and Mail-In Ballots of Nov. 3, 2020 Gen. Election, No.
31 EAP 2020, 241 A.3d 1058 (Pa. Nov. 23, 2020) (rejecting statutory
claims seeking to disqualify signed mail-in or absentee ballots timely
received by November 3, 2020).

15. Ex. 78 contains findings from the Final Report of the House
Select Committee to Investigate the January 6th Attacks that the
trial court admitted into evidence.
31

Perhaps most important, before the speech on the

Ellipse, Vice President Pence had told an angry Mr.
Trump that morning that Pence would not stop the
congressional certification of Joe Biden. Id. (finding 321).
Mr. Trump’s response was to try to scare Vice President
Pence with mob force. Mr. Trump primed the Ellipse
crowd by warning that if Vice President Pence did not
relent, “I’m going to be very disappointed in you. I will
tell you right now. I’m not hearing good stories.” Pet. App.
at 223a-226a, ¶ 135. Mr. Trump specifically instructed the
crowd four times with respect to Joe Biden’s becoming
President for “four more years. We’re just not going to
let that happen.” Pet. App. at 227a-228a, ¶ 138.

After the speech, Mr. Trump continued his incitement,

tweeting one hour and three minutes after being informed
that the Capitol was under attack: “Mike Pence didn’t have
the courage . . . .” Pet. App. at 98a, ¶ 215. This tweet by
itself immediately caused more violence at the Capitol. Id.
¶ 216. Mr. Trump told his staff that perhaps Vice President
Pence “deserved to be hanged.” Id. ¶ 218.

Ultimately, this case has a virtual confession. On

December 3, 2022, Mr. Trump posted that his unfounded
accusation of widespread election fraud “allows for the
termination of all rules, regulations, and articles, even
those found in the Constitution.” J.A. 1332 (emphasis
added). He had said much the same in his January 6,
2021 speech on the Ellipse: “When you catch somebody
in a fraud, you’re allowed to go by very different rules.”
Pet. App. at 97a, ¶ 213. Mr. Trump deliberately tried to
break the Constitution—to incite threatened and actual
armed force to prevent the peaceful transfer of executive
power mandated by the Executive Vesting Clause and the
32

Twelfth and Twentieth Amendments. That constituted

engaging in an insurrection against the Constitution.16

CONCLUSION

This Court should affirm.

January 29, 2024 Respectfully submitted,

Matthew W. Edwards Richard D. Bernstein

1300 19th Street NW, Counsel of Record
Suite 300 1875 K Street NW,
Washington, DC 20036 Suite 100
Washington, DC 20006
Nancy A. Temple (301) 775-2064
Katten & Temple, LLP [email protected]
209 S. LaSalle Street,
Suite 950
Chicago, IL 60604

Counsel for Amici Curiae

16. Mr. Trump has no First Amendment defense. First, the

imminent violence and his intent satisfy Brandbenburg v. Ohio,
395 U.S. 444 (1969). Second, and independently, Brandenburg does
not limit the express constitutional provisions that govern who may
hold office, including the impeachment provisions and Section 3. See
P. Keisler & R. Bernstein, Freedom of Speech Doesn’t Mean What
Trump’s Lawyers Want It to Mean, Atlantic (Feb. 8, 2021), https://
www.theatlantic.com/ideas/archive/2021/02/first-amendment-no-
defense-against-impeachment/617962/ (last visited Jan. 12, 2024).
APPENDIX
i

TABLE OF APPENDICES
Page
APPENDIX A — LIST OF AMICI CURIAE . . . . . . . 1a
1a

APPENDIX A —Appendix
LIST OFAAMICI CURIAE*

Charles Stevenson Abbot, Admiral, United States

Navy (Retired), Deputy Commander, United States
European Command, 1998-2000; Deputy Homeland
Security Advisor, 2001-2003.

Donald Ayer, Deputy Attorney General, 1989-1990;

Principal DeputySolicitor General, 1986-88; United States
Attorney, Eastern District of California, 1982-1986;
Assistant United States Attorney, Northern District of
California, 1977-1979.

Louis E. Caldera, United States Secretary of the

Army, 1998-2001; Director of the White House Military
Office, 2009; President, University of New Mexico, 2003-
2006; California State Assembly member, 1992-1997;
United States Army officer, 1978-1983; currently Senior
Lecturer of Business Administration, Harvard Business
School.

George Conway, Board President, Society for the

Rule of Law; argued Morrison v. National Australian
Bank, Ltd., 561 U.S. 247 (2010).

Eric Edelman, Under Secretary of Defense for

Policy, 2005-2009; Principal Deputy Assistant to the Vice
President for National Security Affairs, 2001-2003.

* The views expressed are solely those of the individual amici

and not any organization or employer. For each amicus, reference
to prior and current position is solely for identification purposes.
2a

Appendix A

Mickey Edwards, Representative of the Fifth

Congressional District of Virginia, United States House
of Representatives, 1977-1993; founding trustee of the
Heritage Foundation and former national chairman of both
the American Conservative Union and the Conservative
Political Action Conference.

Stuart M. Gerson, Acting Attorney General, 1993;

Assistant Attorney General for the Civil Division,
1989–1993; Assistant United States Attorney for the
District of Columbia, 1972–1975.

John Giraudo, Attorney Advisor, Office of Legal

Counsel, 1986-1988; Associate Deputy Secretary of Labor,
December 1986-1988.

Peter Keisler, Acting Attorney General, 2007;

Assistant Attorney General for the Civil Division, 2003-
2007; Principal Deputy Associate Attorney General and
Acting Associate Attorney General, 2002-2003; Assistant
and Associate Counsel to the President, The White House,
1986-1988.

J. Michael Luttig, Circuit Judge, United States Court

of Appeals, 1991-2006; Assistant Attorney General, Office
of Legal Counsel and Counselor to the Attorney General,
1990-1991; Assistant Counsel to the President, The White
House, 1980-1981.

John M. Mitnick, General Counsel, United States

Department of Homeland Security, 2018-2019; Associate
Counsel to the President, The White House, 2005-2007;
3a

Appendix A

Deputy Counsel, Homeland Security Council, The White

House, 2004-2005; Associate General Counsel for Science
and Technology, United States Department of Homeland
Security, 2003-2004; and Counsel to the Assistant
Attorney General (Antitrust), United States Department
of Justice, 2001-2002.

Jonathan C. Rose, Assistant Attorney General, Office

of Legal Policy, 1981-1984; Deputy Assistant Attorney
General, Antitrust Division, 1975-1977; Associate Deputy
Attorney General and Director, Office of Justice Policy
and Planning, 1974-1975; General Counsel, Council
on International Economic Policy, 1972-1974; Special
Assistant to the President, 1971-1972; White House Staff
Assistant, 1969-1971.

Paul Rosenzweig, Deputy Assistant Secretary for

Policy, Department of Homeland Security, 2005-2009;
Office of Independent Counsel, 1998-1999; United States
Department of Justice, 1986-1991;currently Professorial
Lecturer in Law, The George Washington University
Law School.

Nicholas Rostow, General Counsel and Senior Policy

Adviser to the U.S. Permanent Representative to the
United Nations, New York, 2001-2005; Special Assistant
to the President for National Security Affairs and Legal
Adviser to the National Security Council, 1987-1993;
Special Assistant to the Legal Adviser, U.S. Department
of State, 1985-1987; currently, Senior Research Scholar
at Yale Law School.
4a

Appendix A

Robert Shanks, Deputy Assistant Attorney General,

Office of Legal Counsel, 1981-1984.

Christopher Shays, Representative of the Fourth

Congressional District of Connecticut in the United States
House of Representatives, 1987-2009

Larry Thompson, Deputy Attorney General, 2001-

2003; Independent Counsel to the Department of Justice,
1995-1998; United States Attorney for the Northern
District of Georgia, 1982-1986; currently, John A. Sibley
Chair of Corporate and Business Law at University of
Georgia Law School.

Stanley Twardy, United States Attorney for the

District of Connecticut,1985–1991.

Wendell Willkie, II, Associate Counsel to the

President, 1984-1985; Acting Deputy Secretary, U.S.
Department of Commerce, 1992-1993; General Counsel,
U.S. Department of Commerce, 1989-1993; General
Counsel, U.S. Department of Education, 1985-1988;
currently, adjunct Professor of Law at New York
University and adjunct fellow at the American Enterprise
Institute.

Richard Bernstein, Appointed by the United States

Supreme Court toargue in Carmell v. Texas, 529 U.S. 513,
515 (2000); Montgomery v. Louisiana, 136 S. Ct. 718, 725
(2016).