Kansas AG Kobach tells U.S. Supreme Court: ‘Trump did not engage in an insurrection’

Kansas Attorney General Kris Kobach doesn’t think former President Donald Trump should be removed from the 2024 ballot in Colorado and Maine for a simple reason – he doesn’t believe Trump engaged in an insurrection.

The Republican state attorney general last week urged the U.S. Supreme Court to strictly interpret the 14th Amendment to the U.S. Constitution, a post-Civil War addition that bars anyone who previously swore to support the constitution and then “engaged in insurrection or rebellion against” the country from again holding office.

The Jan. 6, 2021, attack on the U.S. Capitol, in which hundreds of Trump supporters stormed the building and temporarily disrupted the certification of President Joe Biden’s election, was not comparable to the Civil War – and therefore not an insurrection or rebellion against the U.S. Constitution, Kobach argues in a section of his brief entitled “Trump did not engage in an insurrection or rebellion.”

“While the occurrences on January 6th were certainly not our Country’s finest, there is no colorable basis to conclude that they are, in any way or form, an internal uprising akin to the war that transpired from 1861 to 1865,” Kobach wrote in an amicus brief to the Supreme Court submitted last week.

Kobach’s brief comes amid a slew of legal filings with the court – more than 47 – ahead of the Feb. 8 oral arguments in Trump v. Anderson, when the Supreme Court will consider whether the Colorado Supreme Court erred when it ruled that Trump ineligible to appear on the state’s ballot because he participated in an insurrection.

The case is politically explosive, with the potential to dramatically reshape the 2024 presidential election. It is also the Supreme Court’s most direct involvement in a presidential race since the 2000 Bush v. Gore decision, which effectively handed the presidency to President George W. Bush.

Many of the briefs represent Republicans racing to defend Trump, similar to the wave of amicus briefs from conservative elected officials that asked the Supreme Court to delay the certification of the 2020 presidential election.

Kobach wrote one brief and signed on to a second, led by Indiana and West Virginia. Missouri Attorney General Andrew Bailey, who faces a tough primary election, also signed onto a brief, and Missouri Secretary of State Jay Ashcroft, who is running for governor, led a brief signed by several Republican secretaries of state.

Every member of Congress from Kansas and Missouri, with the exception of Rep. Jake LaTurner, a Kansas Republican, signed on to a brief led by Sen. Ted Cruz, a Republican from Texas and former Supreme Court Clerk. Even the Kansas Republican Party filed a brief.

“In addition to it being something that I think would sort of naturally draw interest from political actors, I think a lot of the filings are ways of people essentially sort of demonstrating their offerings of tribute to Trump so that they prove that they are in his good graces,” said Ian Bassin, the executive director of Protect Democracy, a non-profit focused on countering authoritarianism in the U.S.

“Because they need that for their future careers.”

The pro-Trump briefs largely rehash similar arguments. They say the section of the 14th Amendment that would bar someone from serving in office for engaging in an insurrection and rebellion is not “self-enforcing,” meaning that it requires action from Congress to bar the person from serving. They also argue the insurrection clause doesn’t apply to Trump.

In his brief, Ashcroft asks the court not to allow state secretaries of state to determine whether a candidate has engaged in an insurrection, saying the determination goes beyond the standard qualifications they evaluate like age, residency or citizenship.

Referencing the Maine Secretary of State’s decision to remove Trump from the ballot, Ashcroft argues that secretaries of state aren’t equipped to make those decisions, and says it would heighten partisan politics and would end up with anti-democratic results.

“Allowing elected Secretaries of State to make time-sensitive and unreviewable decisions about ballot qualification will lead to partisan abuse,” Ashcroft’s brief says. “Tit-for-tat disqualification decisions, if abused by partisan actors, sets a dangerous precedent for a deeply-divided Nation.”

In the amicus brief from more than 177 Republican lawmakers, Cruz also argues that the Colorado Supreme Court’s definition of insurrection would open up a tit-for-tat response, in which he brings up protests after the 2020 murder of George Floyd that sometimes turned violent and demonstrations outside of the confirmation hearings of U.S. Supreme Court Justice Brett Kavanaugh in 2018.

Cruz also argues that the amendment’s language doesn’t apply to Trump because it does not specifically indicate the offices of president or vice president.

“When the Fourteenth Amendment was enacted, the only former President who had joined the confederacy, John Tyler, was dead,” Cruz’s brief says. “The framers of the Fourteenth Amendment had little reason to worry about a former President being elected, so they did not include it in Section 3.”

There are more amicus briefs in support of Trump than of the Colorado Supreme Court amid a larger reticence from Democrats to support the case, which some of Trump’s defenders – like Sen. Josh Hawley, a Missouri Republican – have pointed out.

Bassin’s group filed an amicus brief in the case with the Brennan Center for Justice and Campaign Legal Center, but it was in support of neither party and instead focused on preserving a court ruling that state courts should ultimately decide state law.

But Bassin has been reading and writing about the case and worries that legal experts are dancing around the issue because they’re fearful of what it would mean if the Supreme Court removed Trump from the ballot. He has argued that if the Supreme Court upholds Colorado’s decision, it would be vindicating the constitution’s system of checks and balances on the government.

“I think a lot of very smart legal thinkers are extremely afraid of what would happen if the court simply applied the law as written, and therefore they are twisting their legal analysis to suggest interpretations of the law that don’t make any sense when you read it,” Bassin said. “Out of fear.”