From his Slate column today:
There are many ways that Trump could win in the Supreme Court. For example, the court could accept the First Amendment defense Trump has offered. Or it could agree with Trump that states can only consider disqualifying candidates under Section 3 if Congress passes a statute authorizing it. Or it could agree that Trump did not have an adequate chance to defend himself in the state court. Or it could hold that the evidence was not sufficient to show that he actually "engaged in insurrection." Or it could resuscitate an extreme version of the "independent state legislature" theory that Colorado law did not authorize Colorado courts to remove Trump from the ballot for violating Section 3. Winning on some of these issues would mean not only that Trump would be back on the ballot in Colorado, but potentially throughout the country.
What's most interesting about Trump's brief, though, is what it leads with—and what it leaves out, telling us a lot about where Trump thinks he has the best shot at the Supreme Court and the strength of his arguments. Trump leads with the hypertechnical argument accepted by the trial court (but rejected by Colorado's Supreme Court) that Trump is not an "officer of the United States" for purposes of Section 3. Trump devotes about three times as much space to this argument compared to any of his other individual arguments. [To be precise, the argument takes up 12½ pages, and the two longest other arguments each take up a bit more than 5 pages each. -EV]
Briefs are typically written to put the strongest argument first. Why would Trump think the officer argument is the strongest? It seems weak: As Trump's challengers argue in the Supreme Court: "It would defy common sense to hold that Section 3 disqualifies every oath-breaking insurrectionist officer (down to postmaster or county sheriff) except the most powerful one—a former Commander-in-Chief." This is especially true given the historical context of the amendment's passage. As conservative scholar Sam Bray recently wrote over at the Volokh Conspiracy:
