[This is the second installment in a series about the oral argument in Trump v. Anderson. The first installment focused on Justice Gorsuch's colloquies about "Officers of the United States." This installment will focus on Justice Jackson's colloquies about "Office under the United States."]
In the lower courts, Trump argued that the President was not an "Officer of the United States" and that the Presidency was not an "Office under the United States." Seth Barrett Tillman and I are the primary proponents of the former argument, and Kurt Lash is the primary proponent of the latter argument. Either argument would decisively win the case for Trump. Yet, before the Supreme Court, the Petitioner's opening brief barely mentioned "Office under the United States." At most, Petitioner said the phrase was "ambiguous" in Section 3. The issue was probably preserved, but it was clear that Petitioner did not forcefully argue the position. Going into Court, it seems that Jonathan Mitchell, counsel for Petitioner, was not willing to fully embrace the "Office under the United States" argument. Why? He was worried about an Emoluments boomerang. This may have been a deliberate strategy at the outset, but it is one that should have been abandoned.
