10th justice

As Supreme Court weighs Trump’s eligibility, the ‘10th justice’ stays mum

The solicitor general would typically file arguments on an issue of this magnitude — but the upcoming Trump case is a political lightning rod.

By JOSH GERSTEIN

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.

Typically, the Justice Department would want to weigh in on those implications, and the court would listen closely. The solicitor general — the top Justice Department lawyer who represents the government at the high court — is often referred to as the tenth justice because of the weight the court has historically accorded to the official legal voice of the executive branch. The solicitor general, or her deputy, even gets special time during many oral arguments to present the government’s views.

But Solicitor General Elizabeth Prelogar has not sought to intervene in the Trump case. Nor has the court asked for the administration’s input. With arguments scheduled for Feb. 8, it seems increasingly likely that the administration will simply sit out.

A Justice Department spokesperson declined to comment.

One prominent supporter of the legal drive to disqualify Trump from the ballot said he still hopes the court will ask the Justice Department to step forward.

“I cannot imagine the Supreme Court not asking for the views of the United States on this fundamental and historic question of constitutional law. The court would invite justified criticism and suspicion if it did not,” said former 4th Circuit Court of Appeals Judge Michael Luttig. “By the same token, neither can I imagine the United States not offering its views — whether asked or not — on this foundational question of our republic. It, too, would invite justified criticism and political suspicion if it did not.”

Key deadline passes

One major clue about DOJ’s intentions came last week. Under the Supreme Court’s order agreeing to hear the case on an accelerated schedule, last Thursday was the deadline to file amicus briefs supporting Trump or “in support of neither party.” More than 40 such briefs arrived, but none from the Justice Department.

Amicus briefs supporting the Colorado voters challenging Trump’s eligibility are not due until next week. But it seems unlikely that DOJ would definitively take the side of the challengers. Several lawyers closely following the case said the “neither party” category was the only one they could have imagined the Justice Department choosing.

One reason to do so would be to express concern about how some potential grounds for a Supreme Court decision could destabilize other areas of the law. For example, Trump’s lawyers and some scholars contend that former or sitting presidents are not covered by the 14th Amendment’s language excluding insurrectionists. However, a ruling allowing Trump to remain on the ballot and perhaps resume the presidency on those grounds could affect the application of similar language about U.S. “officers” elsewhere in the Constitution and in federal law.

In addition, a ruling that the insurrection clause cannot be enforced without an act of Congress — as Trump’s lawyers and others have argued — could affect other tenets of the 14th Amendment, like the guarantees of equal protection and due process, which have long been understood to be automatically enforceable by courts without any act of Congress.

Prelogar, like all modern solicitors general, routinely alerts the court to these sorts of sweeping federal consequences in other cases. Just last month, she filed amicus briefs on behalf of the government in two pending Supreme Court cases. One involves the legal standard for lawsuits claiming retaliatory arrest. The other explores whether the Constitution allows states to be sued for damages over alleged takings of private property. Prelogar was granted time to argue in both cases.

The justices could still ask for the Biden administration’s input in the Trump election case at any time, but such a request could be seen as politically provocative.

‘That’s up to the court’

Biden himself has said little about the thorny legal issues in the case or how the Supreme Court should approach them. Last month, after Colorado’s top court deemed Trump disqualified and set the issue on a path to the Supreme Court, Biden initially demurred when asked for his view.

“That’s up to the court. That’s all I have to say about it,” the president said.

However, when asked whether Trump is an insurrectionist, Biden was emphatic.

“Certain things are self-evident. You saw it all,” the president declared. “Now, whether the 14th Amendment applies, I’ll let the court make that decision. But he certainly supported an insurrection. No question about it. None. Zero.”

Biden’s response was more pointed than former President Bill Clinton’s studied public neutrality when the Supreme Court last entertained a major showdown over a presidential election: the 2000 case of Bush v. Gore.

“I don’t think I should get involved in that,” Clinton said at the time. “There will be a full accounting according to an accepted legal process. … Both sides are certainly very well represented, and they’ll argue their points and we’ll see how it works.”

One prominent Democratic lawyer on the side of Trump’s challengers said he does not believe that Biden’s statements will affect the Justice Department’s decision about whether to weigh in on the Trump case.

“President Biden’s vows, because of his personal interest in the matter, will not be taken into account by DOJ,” said Norm Eisen, a White House counsel’s office lawyer under President Barack Obama. Eisen co-founded the group spearheading the challenge to Trump’s eligibility, Citizens for Responsibility and Ethics in Washington.

“DOJ will make an independent judgment on this,” Eisen said, adding: “The DOJ is unlikely to feel the necessity to bring the opprobrium down on their heads that will come down whatever position they take.”

However, Luttig — who was appointed as a federal judge by former President George H.W. Bush — said a failure by the Justice Department to take a stand in the case would signal that politics have infected decision making in the agency. Luttig noted that the question of whether Trump is an insurrectionist is connected with the Justice Department’s ongoing criminal prosecution of Trump for attempting to subvert the 2020 election, although Trump’s brief stressed that neither he nor anyone else has been charged criminally with insurrection.

“The Department of Justice either believes that its prosecution of the former president for his crimes against the United States is required by the Constitution, in which event it will gladly offer its views to the Supreme Court on the inextricably related question of the former president’s disqualification, or it does not, in which event it will duck the question for the administration’s partisan political purposes,” the judge said.