Washington — When the blockbuster dispute over whether former President Donald Trump can serve a second term in the White House landed before the U.S. Supreme Court last month, it was Larry Coben’s 100-year-old father who encouraged him to put something together for the nation’s highest court.
Jack Coben, a Navy veteran who lives in Pennsylvania, was bothered by the situation and didn’t believe Trump should be president again. His son is a practicing lawyer who has submitted “amicus curiae” briefs — Latin for “friend of the court” — to the Supreme Court on behalf of an auto safety group in the past. The practice allows outside parties who may have an interest in a specific case to weigh in before the justices hear oral arguments.
Larry Coben, 75, began looking into Section 3 of the 14th Amendment, the 155-year-old constitutional provision at the heart of the case, and how it might apply to the former president. He concluded that it’s too soon to decide Section 3’s application because it prevents a person from holding office, not running for office.
For this reason, he wrote in his eventual amicus brief, the justices should reverse a decision from Colorado’s highest court, which found that Trump is disqualified from holding the presidency because of his actions surrounding the Jan. 6, 2021, assault on the U.S. Capitol.
“I felt like it was important to at least share our view that [Section 3] is clearly self-executing, doesn’t require anything,” Larry Coben said. “The bottom line of my analysis and conclusion is that he will be disqualified if he’s ever elected, and the only way he gets around that is if two-thirds of the Congress remove the disqualification. It’s just not the time, because he’s not holding office.”
The Supreme Court is set to hear arguments in the case involving whether Section 3 of the 14th Amendment disqualifies Trump from the presidency on Thursday. The former president and a group of six Colorado voters who challenged his eligibility have called for the justices to issue a decision swiftly to provide clarity for voters before they cast their ballots.
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Larry Coben said he hasn’t shared his brief with many people in his life, and believes it’s unlikely the justices themselves will ever read his analysis. Their law clerks typically screen amicus briefs before elevating those that might be of interest to their bosses.
But every brief is publicly available on the court’s website, where they’re listed on the relevant docket. While the Trump case has attracted the type of input one might expect from legal scholars, political groups, lawmakers, state officials and the like, it has also prompted more than a dozen filings from voters like Larry Coben, who have felt compelled to express their views on whether Trump is eligible for a second term.
Motivated by a desire to protect voting rights and advocate for fair elections, some of the briefs are written by lawyers on behalf of themselves or interested family members, like Larry Coben and his father. Others come from groups of voters who have joined together to express their support for Trump.
“This is how we exercise our voice”
Submitting a friend-of-the-court brief to the Supreme Court is no easy task. It must be filed by an attorney who is a member of the Supreme Court bar, and hiring one can come with steep legal fees. The court’s rules specify that 40 copies must be submitted in booklet form and meet specific formatting requirements. All of the parties involved must also receive three copies of the briefs. In this case, that includes Trump, the Colorado voters, the Colorado Republican Party and Secretary of State Jena Griswold.
Devin Watkins, who works for a public policy organization based in Washington, D.C., estimated that he spent nearly $800 on printing and mailing costs to submit his amicus brief. He devoted weekends and nights to crafting and editing his drafts of his argument, which he filed with his father, a Trump supporter.
“This has been a passion of mine professionally and personally,” Watkins said of his constitutional studies and, specifically, the understanding of the phrase “officer of the United States” as it pertains to Section 3.
The clause prohibits any individual who has sworn an oath to support the Constitution and then engages in insurrection against it from holding federal or state office. Section 3 says that it applies to those who have taken a constitutional oath “as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State.”
Whether presidents are considered “officers of the United States” is one of the key questions the Supreme Court has been asked to decide. The Colorado Supreme Court found that the clause does indeed apply to presidents, but Watkins and lawyers for Trump separately argued that determination was wrong.
“We have to look at what those words meant to the people who wrote it,” Watkins said. “I thought I had something valuable to help the court in understanding the meaning in this case.”
The father-and-son warned in their filing to the Supreme Court that the Colorado decision is “not just wrong, but dangerous.”
Another lawyer, G. Antaeus Edelsohn, is supporting the six Colorado voters who challenged Trump’s eligibility for the presidency, and said he felt compelled to get involved because of his passion for the rule of law and constitutional structure.
“Because it deals with elections and voting and enfranchisement, this is something which affects me as an individual, as a voter who registered at 18, and is something that everyone has a right in. That is the main way that average citizens communicate with government. This is how we exercise our voice,” he said.
Edelsohn, who is 33 and lives in Virginia, views the court fight over Trump’s ability to remain on the ballot as a “testing moment” for the American experiment. His brief notes that he felt “a personal ethical obligation to take a stand on behalf of the U.S. Constitution and to advocate for accurate and honest elections, where voters are able to make an informed decision among candidates who are actually eligible to serve if they were to receive a winning number of votes.”
The Supreme Court and 2024
The case involving Trump is politically explosive, since its outcome could decide whether his name can be listed on ballots nationwide for the primary and general elections. The decision to take the case has drawn comparisons to Bush v. Gore in 2000, the last time the justices directly intervened in a presidential election. In that instance, a divided high court effectively decided the presidential contest for George W. Bush, a Republican. The ruling left the Supreme Court mired in political controversy.
The political environment has changed dramatically since the 2000 election, with partisan divisions deepening. In a filing last month, lawyers for Trump warned the Supreme Court that if other state courts and officials exclude him from their ballots, it would “unleash chaos and bedlam.” Efforts to disqualify Trump under Section 3 also threaten to disenfranchise millions of his supporters, they said.
It’s an argument that Pearl Madrial also made to the justices in a friend-of-the-court brief filed in support of Trump. Madrial, 39, stressed that keeping Trump off the ballot would dilute her vote and threaten her ability to vote for her candidate of choice. A native of the Philippines who now resides in North Carolina, Madrial became a U.S. citizen in 2012 and said she wanted to make sure she knew her rights upon doing so.
“This is a federal election that concerns all 50 states, and for that to dilute my vote, it is not fair,” she said.
Madrial reached out to her lawyer and raised the concerns she wished to express to the justices after learning about the Colorado Supreme Court decision in December. In July, she separately challenged Attorney General Merrick Garland’s appointment of special counsel Jack Smith as unconstitutional, arguing that his activities as special counsel have subverted her right to vote for her preferred candidate, Trump. That case was dismissed late last year.
“I want them to be fair to me as a citizen here in the United States of America and my right to vote,” Madrial said of the justices. “That’s why I raised my concerns.”
