On several occasions, Mitchell even offered concessions about weaknesses in his arguments, while then explaining how they didn’t detract from the ultimate conclusion that the Colorado Supreme Court’s decision striking Trump from the ballot must be overturned.
“We acknowledge that we have a somewhat heavier lift on the first point,” Mitchell said during an unusually frank exchange with Justice Ketanji Brown Jackson about whether the presidency is covered by two phrases in the
insurrection clause.
And moments later, Mitchell conceded that one of the arguments by Trump’s opponents “somewhat cut against us.”
Mitchell’s arguments were so restrained that Jackson actually suggested Trump’s side might be underplaying some arguments in his favor, like the possibility that the drafters of the amendment intentionally left the presidency out of the list of offices from which insurrectionsists should be barred.
“Given the text of the provision and the historical context that seems to demonstrate that their concern or their focus was not about the presidency, I just don’t understand why you’re giving that argument up,” Jackson said to Mitchell.
It was a spectacle that almost nobody would have predicted: Joe Biden’s only nominee to the Supreme Court urging Trump’s lawyer to be more assertive. And it was all the more surprising because Mitchell has a reputation for aggressively pushing the law in new directions. Most famously, the last time Mitchell appeared at the Supreme Court involved a controversial Texas abortion ban that Mitchell himself devised. In that case, Mitchell’s provocative legislation
prompted Justice Elena Kagan to refer sarcastically to him and his allies as “some geniuses” who had invented a way to circumvent the Constitution.
In the Trump ballot case, however, Mitchell’s soft-pedaling approach seemed to clinch what most legal experts had already expected: a near-certain victory for the former president.
Still, Mitchell’s approach occasionally created some daylight between him and his famously combative client, such as when the lawyer had to discuss the events of Jan. 6, 2021.
Trump has consistently minimized the significance of the Capitol riot, blamed it on others like the police, donated to a legal defense fund for alleged rioters and said he’d pardon many of those convicted if he wins back the White House.
Standing before the justices Thursday, Mitchell took a notably different tack. While disputing that the attack amounted to an “insurrection,” he seemed to acknowledge its seriousness.
“This was a riot,” said Mitchell, a former Texas solicitor general. “The events were shameful, criminal, violent — all of those things, but did not qualify as insurrection.”
Head fake?
In the lead-up to Thursday’s arguments, Trump’s side gave every indication that the justices should brace for a pugilistic presentation that would feature the seemingly requisite stroking of Trump’s ego and castigation of his opponents.
Trump’s opening brief at the U.S. Supreme Court
contained a grim warning of “chaos and bedlam” if the Colorado court’s decision ordering him stricken from the ballot remained in place.
And an additional brief Trump’s team filed with the high court on Monday opened by boasting that Trump had “won the Iowa caucuses with the largest margin ever for a non-incumbent and the New Hampshire primary with the most votes of any candidate from either party,” suggesting that his vote tallies have some bearing on the legal issues in the case.
While
many Trump court proceedings take on a
circus-like atmosphere, and there was a bit of that outside the building Thursday, his team seemed to take pains to limit the drama inside.
There was no hint of the provocative suggestion one of Trump’s lawyers offered last month that Trump-appointed justices — who account for a third of the court — could be expected to rule in his favor.
“You know, people like Kavanaugh who the president fought for, who the president went through hell to get into place, he’ll step up,” Trump lawyer Alina Habba told Fox News.
Study in contrasts
Mitchell’s mild-mannered demeanor stood in stark contrast to that of Habba and other lawyers Trump has relied on in high-profile matters. Her bombast was on display recently in New York as Trump
battled a lawsuit from Attorney General Tish James seeking to fine him hundreds of millions of dollars and strip him of his New York business license.
During the trial to set those damages, Habba was loud and dramatic, often sounding like a lawyer you might see in a television series — especially when her client was in the room.
Instead of standing at the lectern to ask questions of witnesses, she would sometimes pace back and forth across the room wearing a microphone clipped to her suit. After she and the other Trump lawyers repeatedly criticized the judge’s principal law clerk, he issued a gag order barring them from speaking about her.
In another trial, on a defamation suit writer E. Jean Carroll brought over Trump’s denial of her claims that he raped her in the 1990s, Habba repeatedly drew stern rebukes from U.S. District Judge Lewis Kaplan.
When Habba asked Carroll if she “generated a good amount of income” from her Substack newsletter, the judge stopped Habba, suggesting she didn’t understand court procedures. “What’s ‘a good amount of income?’ Look, it’s Evidence 101,” he said.
And after Habba attempted to use a slide in her closing argument that included material she hadn’t entered as evidence, Kaplan threatened to detain her. “You are on the verge of spending some time in the lockup,” he said. “Now, sit down.”
The Carroll case did not go well for Trump: A jury last month
ordered him to pay $83.3 million. A verdict in the New York business fraud trial is expected in the coming days.
Was Trump’s no-show part of the plan?
Perhaps one advance hint of the Trump team’s calibrated approach at the high court was his decision not to attend the arguments in person Thursday. Speculation about his attendance had swirled for weeks. The attention he would have drawn in the courtroom would certainly have added to the tension and increased the sense of a high-stakes political showdown in the historic and rarefied Supreme Court chamber.
And there may be another dynamic at play: Trump’s legal team will likely be back at the Supreme Court soon.
Trump faces a Monday deadline to file an emergency application with the Supreme Court asking the justices to
put a hold on his criminal trial on charges of seeking to overturn the 2020 presidential election through fraud.
Trump’s claim of presidential immunity in that case
was rejected by a unanimous three-judge panel of a Washington federal appeals court on Tuesday. Trump needs five justices to step the coming weeks to prevent a trial that could divert him from the campaign trail at the height of the 2024 presidential contest and could sour voters on his candidacy if he is convicted.
But the Trump team’s decision to dial it down in front of the justices on Thursday did not extend beyond the four corners of the courtroom.
Trump bookended the argument with emailed fundraising appeals replete with capital letters, denouncing the case at the high court. “They want me COMPLETELY ERASED!,” Trump said in a message sent just after the arguments concluded. “THEY WANT TO ERASE YOUR RIGHT TO VOTE FOR ME!”
And shortly after the arguments wrapped, Trump held a press conference at his Mar-a-Lago estate where he was true to form, mounting withering attacks on his political enemies. He blamed former Speaker Nancy Pelosi for the Capitol riot and accused Rep. Maxine Waters (D-Calif.) of “vicious” and “violent” statements.
Trump called the arguments Mitchell delivered at the Supreme Court “very, very strong.” But the former president suggested the justices should focus on something his side barely mentioned Thursday: his strong performance in the polls.
“An argument that is very important is the fact that you are leading in every race. You are leading in every state. You are leading in the country against both Republican and Democrat and Biden, you are leading in the country by a lot. And can you take the person that’s leading everywhere and say, hey, we’re not going to let you run?” Trump said. “You know, I think that’s pretty tough to do, but I’m leaving it up to the Supreme Court.”
Erica Orden and Kyle Cheney contributed to this report.
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