Trump foes' day in court won't be a slam dunk

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The Minnesota Supreme Court is poised to hear one of its most important cases ever. On Nov. 2, the justices will hear arguments in a case challenging the placement of former President Donald Trump on the Republican primary ballot in March — or ultimately on the November general election ballot should he be nominated for a return to the White House.

Similar challenges are advancing in at least four other states, but Minnesota will be the first to have its state Supreme Court address the matter (three days after a Colorado court conducts a trial on the issues).

The question in these cases is whether the "insurrection" clause in Section 3 of the 14th Amendment of the U.S. Constitution bars the former president from being on the ballot. The provision, embedded in one of the 1868 post-Civil War amendments, prohibits from holding federal or state office any former official who has "engaged in insurrection or rebellion" against the government or given "aid or comfort" to its enemies.

The Minnesota case is brought on behalf of a national nonprofit group known as Free Speech for People. It consists here of an eclectic group including marquee litigants Joan Growe, a staunch DFLer and ex-secretary of state, and former Minnesota Supreme Court Justice Paul Anderson, a highly regarded retired jurist and a one-time Republican.

The intriguing core issues involve 1) defining what constitutes an "insurrection" and whether one did occur Jan. 6, 2021; 2) if so, assessing the extent of the former president's involvement in it; and 3) determining whether the disqualification provision applies to him.

Generally, "insurrection" means an unlawful uprising intended to overthrow a government body. The question whether what occurred on Jan. 6, 2021, and in the run-up to it, constituted an "insurrection" within the meaning of Section 3 of the 14th Amendment does not yield to a simple answer.

The amendment was drafted in the wake of the Civil War, which involved a vast armed rebellion aimed at creating a separate government in 11 southern states that purported to secede from the Union. This was a far cry from what Trump advocates insist occurred after the 2020 election: the exercise of First Amendment freedom of expression challenging the electoral process and outcome.

The Trump argument lost some potency after a judge ruled in the parallel Colorado case that Trump's Jan. 6 exhortation to the mob to march on the Congress was not constitutionally protected free speech.

Minnesota's high court must also determine whether Trump is culpable for what followed under the "engaged" or "aid" clauses.

Proving both of these elements — that an "insurrection" occurred and that Trump was "engaged" in it or gave "aid" to it will be far from a slam dunk.

There has been no judicial determination of either of those facts. Along with the Colorado trial court, the Minnesota court will have to base its decision on the evidentiary record presented to it without any testimony. There is, however, a large body of evidence, both factual and documentary, produced in the past year by the Jan. 6 congressional inquiry committee and the various criminal prosecutions that will be mustered by the claimants to establish their two points, subject to rebuttal by the Trump team.

The claimants also may have to fend off an argument that the "insurrection" disqualification does not apply to Trump because another original provision of the Constitution sets forth the exclusive qualifications required to run and serve as president: 35 years of age; natural born citizen; and 14-year resident of the country, all of which the former president undisputedly satisfies.

A preliminary ruling by the Minnesota Supreme Court earlier this month raises the bar for the Trump campaign, rejecting an effort by the former president to join the disqualification lawsuit, which is brought only against Secretary of State Steve Simon, who certifies ballot placement in Minnesota. The Trump team was precluded from participating as a party in the case because Trump is not named in the lawsuit and his team did not follow proper procedures in seeking to inject him into the case.

The court did, however, allow the Trump campaign to participate by filing a so-called amicus or "friend of the court" brief, which may allow it to participate in oral argument on Nov. 2. Meanwhile, the state Republican Party has been allowed to participate in the case by making a formal request to do so which was not opposed by the Growe-Anderson challengers.

Thus, the oral argument may include presentations from the anti-Trump claimants, the attorney general's office on behalf of the secretary of state, the state GOP and perhaps the Trump campaign. It will prove quite a task for the court under its new leadership, Chief Justice Natalie Hudson, who was elevated to that position upon the retirement this month of Lorie Gildea.

Whether the case even reaches the "insurrection" issues may depend upon resolution of another legal issue: standing. Under that doctrine, parties must have a concrete interest in a case and a real personal stake in its outcome in order to allow a court to rule upon a matter. In this case, the question arises whether the Growe-Anderson claimants have the kind of interest that allows them to pursue their lawsuit.

Courts generally seek to avoid adjudicating constitutional questions if alternatives are available. In this case, determining that the claimants lack standing may be a way of avoiding the difficult issues raised by the "insurrection" clause.

Obviously, political ramifications and undertones are at work here. Six of the seven current members of the Minnesota Supreme Court were appointed by DFL governors. It is not only cynics who may perceive some possibility that political leanings may play a role in the court's determination, notwithstanding the standard denials that such considerations influence legal reasoning.

Some pundits have observed that the effort to bar Trump from the ballot here and elsewhere plays into his narrative that he's the victim of sinister forces seeking to deny his and his supporters' democratic rights by weaponizing the legal system.

The Minnesota case must be decided before the deadline in early January for placement of names on the March 5 primary ballot.

Ultimately, it seems highly likely that the disqualification issue will be settled by the U.S. Supreme Court. The outcome of the Minnesota litigation may be central to the proceedings.

Marshall H. Tanick is a Twin Cities constitutional and employment law attorney.