Attorneys for President Donald Trump have filed suit in the Michigan Court of Claims in a preemptive effort to preserve his place on the state’s 2024 ballot.
The proactive move is designed to counter at least two pending lawsuits that are attempting to have President Trump disqualified under Section Three of the Fourteenth Amendment of the U.S. Constitution for being an alleged “insurrectionist” in connection with the Jan. 6, 2021 rally-turned-riot at the Capitol Building in Washington.
Because the factual allegations of both anti-Trump suits overlap with one another, this article will focus on LaBrandt et al. v. Benson, filed on Sept. 29, 2023.
The plaintiffs are four registered voters from Michigan.
They are represented by Michigan attorney Mark Brewer and five Massachusetts lawyers from the group Free Speech for People (FSP).
According to its website, FSP is a national “non-profit, non-partisan” political advocacy organization.
The defendant in the suit is Michigan’s Democrat Sect. of State Jocelyn Benson.
FSP has also filed a nearly identical lawsuit in Minnesota.
Michigan Secretary of State Jocelyn Benson speaks in Detroit, Michigan, on Aug. 18, 2020. (Rebecca Cook/Reuters)
A separate high-profile case against President Trump is currently being tried in Colorado.
Court Order Could Disqualify Donald Trump
In the Michigan complaint, the plaintiffs asked the court to declare President Trump ineligible to hold public office ever again.
They also asked the court to permanently enjoin Ms. Benson from including President Trump as a candidate in the upcoming Feb. 27 Michigan Republican presidential primary and the Nov. 5, 2024, general election.
Michigan law requires the secretary of state to compile and issue a list of the presidential candidates generally recognized by the national news media and place them on their party’s primary ballot by Nov. 10.
The plaintiffs assert in their complaint that legal action is necessary because, on Sept. 13, 2023, Ms. Benson published an op-ed in the Washington Post claiming that she lacks the legal authority to investigate and determine whether a presidential candidate should be ineligible to run for office because of a Fourteenth Amendment violation.
“She has declared that she will place Trump’s name on the Michigan 2024 presidential primary ballot unless a court prevents her from doing so,” reads the complaint.
Political observers see Ms. Benson, a former law school dean, as a strong candidate to succeed Democrat Governor Gretchen Whitmer when both are term-limited out of their present positions in 2026.
The pleadings allege that President Trump concocted a “scheme to overthrow the government” and “to retain power even if he lost.”
They also allege, “Trump engaged in insurrection or rebellion and is thus disqualified from public office,” pursuant to Section Three of the Fourteenth Amendment.
The Fourteenth Amendment was ratified in 1868 for the purpose of keeping ex-Confederates from holding office in the reconstructed Union.
The complaint also alleged that President Trump “attempted to enlist government officials to illegally overturn the election.”
Not Since Rutherford B. Hayes
In the hotly contested presidential election of 1876 between Republican Rutherford B. Hayes and Democrat Samuel Tilden, the race could not be decided by the Electoral College because the disputes over the electors from four states could not be resolved. Congress created a special Electoral Commission that ultimately sorted things out in favor of Mr. Hayes in March 1877.
This precedent was the basis for the Trump strategy of January 6, 2020.
The 1877 procedure was banned in a bill passed by Congress and signed by President Biden in Dec. 2022.
“On January 4, 2021, Trump and his then-attorney John Eastman met with then-Vice-President Mike Pence and his attorney Greg Jacob to discuss Eastman’s legal theory that Pence might either reject votes on January 6 during the certification process or suspend the proceedings so that states could reexamine the results,” alleges the complaint.
Article Two, Section One of the U.S. Constitution requires the vice-president, in his capacity as President of the Senate, to preside over the counting of electoral votes in a joint session of Congress.
Plaintiffs’ pleadings quote a portion of President Trump’s explanation of the procedure from the speech he delivered at the scene of the Save America Rally held on Jan. 6, 2021, in the Ellipse, a large park south of the White House.
Referring to Mr. Pence, President Trump is alleged to have said, “All he has to do is refer the illegally-submitted electoral votes back to the states that were given false, fraudulent information where they want to recertify.”
Earlier in the program, Mr. Eastman is alleged to have told the crowd, “All that we are demanding of Pence is, this afternoon at 1 o’clock, he let the legislators of the states look into this so we get to the bottom of it.”
The complaint makes much of what it calls President Trump’s incitement of the crowd to violence. This is important, say the plaintiffs, because, though President Trump committed no overt acts of insurrection, his remarks tie him to the criminal conduct of some of his supporters at the Capitol Building.
The complaint cites a couple of quotes from President Trump’s Ellipse speech as examples of his inflammatory talk.
President Trump is alleged to have said: “We want to go back, and we want to get this right because we’re going to have somebody in there that should not be in there, and our country will be destroyed, and we’re not going to stand for that.
“And we’re going to have to fight much harder.
“And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
Following the overturning of Roe v. Wade, Michigan’s Democrat Governor Gretchen Whitmer repeatedly said in public statements, “I will fight like hell” to preserve the right to obtain an abortion.
To date, no legal action has been taken against Ms. Whitmer for her choice of words.
Ten Thousand National Guardsmen
The complaint does not mention that, days before the Ellipse rally, President Trump asked then-Speaker of the House Nancy Pelosi and Washington Mayor Muriel Bowser to concur with his request to deploy 10,000 National Guardsmen to protect the Capitol—something they declined to do.
However, the complaint does list several instances on Jan. 6, in which President Trump appealed to the large and boisterous crowd to remain peaceful.
March ‘Peacefully and Patriotically’
In his Ellipse speech, President Trump is quoted in the complaint as allegedly saying, “I know that everyone here will soon be marching over to the Capitol Building to peacefully and patriotically make your voices heard.”
Among several other appeals for peace and calm by President Trump cited in the complaint are the following:
At 2:38 p.m., Trump posted on X: “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”
Later, at 4:17 p.m., the complaint states that President Trump released a video on Twitter directed to the protestors in which he allegedly said: “I know your pain. I know your hurt…I know how you feel, but go home, and go in peace.”
The Trump Team Sues Benson
Representing President Trump in his lawsuit against Ms. Benson is constitutional lawyer David Kallman and his partner Stephen Kallman of the Kallman Legal Group of Lansing, Michigan, as well as Mark Meuser of the Dhillon Law Group.
In a complaint filed on Oct. 30, 2023, President Trump’s legal team asserted that “President Trump did not engage in an insurrection as those terms are used in Section Three of the Fourteenth Amendment.”
His attorneys argue that neither the secretary of state, other state officials, nor the state courts have the legal authority to decide whether a candidate for president is ineligible to appear on the ballot. They contend that the Constitution commits to Congress the responsibility of determining matters of presidential candidates’ qualifications and that the amendment is not self-enforcing but requires an operative act of Congress to carry it out.
None of President Trump’s constitutionally protected free speech concerning the Jan. 6 protest meets the “stringent requirements for ‘incitement’ both because the content itself is not sufficiently explicit and because it does not evince a specific intent to engage in unlawful activity,” reads his complaint.
President Trump’s lawyers asked the court to declare that, as “a matter of federal constitutional law” and according to Michigan statute, Ms. Benson lacks the authority to determine whether a presidential candidate may be disqualified.
A Preemptive Blow
They also asked the court to enjoin Ms. Benson from refusing to place President Trump on the ballot based on allegations relating to Section Three of the Fourteenth Amendment.
As early as Aug. 18, 2023, Trump attorney David Warrington of the Dhillon Law Group sought confirmation from Ms. Benson that, pursuant to Michigan law, she would include President Trump’s name on the Secretary of State’s list and be placed on the ballot.
According to the Trump complaint, Ms. Benson did not respond.
The Michigan Office of the Secretary of State does not comment on pending litigation.
All three cases are scheduled for hearings on Nov. 9 at the Michigan Court of Appeals courtroom in Grand Rapids.