The legal community was taken aback when former federal court Judge J. Michael Luttig voiced his astonishment at a defense strategy employed by former President Donald Trump’s legal team in a pivotal Supreme Court case. The case in question challenges Trump’s eligibility to be listed on Colorado’s ballot for upcoming elections, invoking the 14th Amendment’s clause against insurrectionists.
Luttig, who has a distinguished background as a Republican judge on the U.S. Court of Appeals for the Fourth Circuit, expressed his disbelief on the social media platform “X” regarding the approach taken by Trump’s attorneys in their latest submission to the court.
In a detailed critique, Luttig described the arguments presented by Trump’s legal team as a virtual admission of defeat, characterized by what he perceives as a lack of substantive legal grounding and a resort to politically and constitutionally dubious assertions.
He specifically pointed out the concluding remarks of Trump’s Reply Brief to the Supreme Court as being particularly revealing and misguided, suggesting that these arguments indirectly concede the weakening of their position in the face of opposing briefs and amicus curiae submissions.
The crux of Trump’s defense, as highlighted by Luttig, revolves around the assertion that neither the Colorado Supreme Court nor the U.S. Supreme Court possesses the authority to preemptively disqualify a presidential candidate based on speculative future actions of Congress. This stance was likened by Luttig to a desperate, last-minute effort to sway the court’s opinion.
This unconventional argument also caught the attention of Lawfare journalist Roger Parloff, who found it peculiar that Trump’s defense posited his disqualification could only be considered post-January 20, 2029. Parloff referenced attorney Richard Bernstein, who contributed an amicus brief supporting Luttig’s position, drawing a literary parallel to the whimsical concept of “jam tomorrow and jam yesterday—but never jam today” from Lewis Carroll’s “Through the Looking-Glass.”
The skepticism towards Trump’s legal rationale was not limited to legal experts and commentators. George Conway, a well-known critic of Trump and a seasoned attorney himself, succinctly branded the defense as “bizarre” and indicative of a fundamental weakness in Trump’s legal stance. This collective response from various corners of the legal community underscores the contentious and highly scrutinized nature of the legal arguments being advanced in this high-stakes Supreme Court case.
