Trump Hires Attorney Behind Texas Abortion Law for Supreme Court Ballot Fight

Erik Larson and Greg Stohr
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(Bloomberg) -- The Texas lawyer who designed that state’s six-week abortion law letting private citizens seek $10,000 bounties from violators has been hired by Donald Trump for his US Supreme Court fight to stay on the presidential ballot.

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Jonathan Mitchell filed a letter Thursday with the high court saying he is representing Trump in his appeal of a Colorado ruling that disqualified him from the state’s primary ballot for attempting to overturn the 2020 election — one of the most politically charged questions to reach the nine justices in decades.

The Austin-based lawyer has argued five cases before the high court, adding heft to Trump’s legal team just as the Colorado case has emerged as a major test of his eligibility to run for president in November. The Supreme Court could decide as soon as later Friday whether to take up Trump’s appeal.

The Colorado Supreme Court on Dec. 19 ruled that Trump’s attempt to stay in office after the 2020 election — culminating in the deadly attack on the Capitol on Jan. 6, 2021 — disqualified him from running again under a section of the US Constitution’s 14th Amendment that bars from office those who’ve engaged in insurrection.

The 14th Amendment Challenge to Trump, Explained

Trump appealed this week, asking the Supreme Court to reverse the ruling and put an end to similar efforts to block him from the ballot across the country.

Conservative Hero

Mitchell became a conservative hero for helping create the Texas abortion law, known as SB8, that banned the procedure before many women know they’re pregnant. The statute was designed to avoid judicial review by placing enforcement in the hands of the public instead of the state. That provision, assailed by critics, helped the law survive a Supreme Court fight in 2021 even though Roe v. Wade was still in place.

“President Trump has the most experienced, qualified, disciplined, and overall strongest legal team ever assembled as he continues to fight for America and Americans against these partisan, Biden-led hoaxes,” Trump campaign spokesman Steven Cheung said in a statement on Mitchell’s hiring.

Mitchell declined to comment.

Mitchell, a graduate of the University of Chicago Law School, clerked for the late Supreme Court Justice Antonin Scalia before serving as a legal adviser in the US Justice Department’s Office of Legal Counsel from 2003 through 2006, according to his biography on the website of the conservative Federalist Society. He was solicitor general of Texas from 2010 to 2015.

‘Brilliant’ Lawyer

One of Mitchell’s first jobs out of law school in 2001 was to clerk for then-federal appeals court judge J. Michael Luttig, now a corporate lawyer and outspoken supporter of the effort to disqualify Trump from the 2024 ballot under the 14th Amendment. Luttig nevertheless recalls Mitchell fondly.

“Jonathan clerked with me almost 25 years ago and he was a superb clerk and brilliant constitutional lawyer,” Luttig said in an interview. He declined to comment on Mitchell’s work for Trump.

Mitchell is also set to argue at the Supreme Court in March in a separate case challenging a federal ban on bump stocks, which attach to semi-automatic rifles and allow them to fire like machine guns. The Trump administration banned the devices in 2017 following a mass shooting in Las Vegas in which they were used.

He previously represented states in Supreme Court arguments challenging Obama administration greenhouse gas regulations and a cross-state pollution rule. He lost one case and got a partial ruling in his favor in the other.

Mitchell is also known for filing a 2022 federal lawsuit to overturn a key provision of the Affordable Care Act, also known as Obamacare, that requires coverage of preventive services like cancer screenings and polio vaccinations, taking particular aim at drugs that prevent HIV infection.

The suit was filed in Texas on behalf of Christian-owned businesses after the drugs were added to a list that most health insurance plans are required to cover at no cost under a provision of ACA. Mitchell argued that such coverage forces Christians to subsidize “homosexual behavior” in violation of the Religious Freedom Restoration Act.

US District Judge Reed O’Connor in Fort Worth ruled in Mitchell’s favor, finding that coverage of such drugs under the ACA “substantially burdens” the religious freedom of a Christian-owned company. The ruling, one of Mitchell’s biggest recent courtroom victories, has been appealed to the Fifth Circuit, where arguments are set for March.

(Updates with other Mitchell cases at the Supreme Court in last section.)

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