Month: December 2023

It didn’t take long for the issue of whether section 3 of the Fourteenth Amendment disqualifies Donald Trump from the presidency to evolve from a “parlor game for law professors,” as one pundit put it, into all-out lawfare.  Numerous lawsuits have been filed to keep Trump off the 2024 ballot in various states. This effort received a major boost with the Colorado Supreme Court’s 4-3 decision that section 3 does indeed disqualify Trump.

Trump is manifestly unfit to be president and returning him to the White House could pose serious threats to our democracy. Thus, disqualifying him may seem appealing. However, it is not the way to go for legal and other reasons. Trump’s fate should be decided by the electorate, not the courts.

The legal case for disqualification is problematic.

Disqualifying Trump under section 3 entails resurrecting a constitutional provision that has lain largely dormant for over a century and extending it far beyond its original context.^[1]See here for background. In the process, it requires answering yes to all the following subordinate legal and factual issues, each of which is unprecedented (with one exception), ambiguous, and seriously contested:

• • Is the presidency an “office” subject to section 3? It may seem obvious that it is, but some experts argue that it is not for technical reasons. Notably, the lower court in the Colorado case adopted this argument.
  • Is section 3 “self-executing,” so that a candidate can be disqualified “automatically” without additional congressional action or a prior adjudication affording due process? This is the one issue on which there is a precedent; it holds that section 3 is not self-executing.
  • Did the January 6, 2021, attack on the U.S. Capitol rise to the level of an “insurrection or rebellion” within the meaning of section 3?
  • If so, did Trump “engage” in it or give “aid or comfort” to “enemies” of the United States?

Issues three and four are the most equivocal, factually and legally. The Colorado courts relied heavily on the work of the House Select Committee to conclude that the January 6 attack was an “insurrection” within the scope of section 3. However, the Committee’s characterization involves considerable political spin. From a more objective perspective, it’s at least as plausible to view the chilling events of that day as a chaotic protest by an unruly mob that devolved into a riot but fell well short of an insurrection.

While there were some truly bad actors among the January 6 participants, the great majority were unarmed and unorganized. Most roamed the Capitol aimlessly, looking and acting more like jackasses than insurrectionists. They were able to breach the Capitol and delay the election certification not because of any concerted effort on their part but due to appalling law enforcement breakdowns.^[2]These law enforcement failures never received the scrutiny and accountability they deserved. The House Select Committee was specifically charged with investigating them but essentially ignored that … Continue reading Tellingly, not one of the January 6 participants was charged with the federal crime of “rebellion or insurrection.” This despite the fact that federal prosecutors, judges, and juries in the District of Columbia threw the book at them in every way they could.

Even if January 6 were to be regarded as an insurrection, it’s far from clear legally or factually that Trump “engaged” in it. He did not participate in or plot an attack on the Capitol. (Indeed, there’s no evidence of any coherent plot.) It’s questionable whether his exhortations crossed the line from recklessness to incitement of violence under applicable case law. Here again, the approach of prosecutors is telling. Special Counsel Jack Smith has been very aggressive in pursuing Trump but declined to charge him with insurrection or any insurrection-related crime.

One additional fact has been largely ignored but seems highly relevant: Congress is on record acquitting Trump of the charge of “incitement of insurrection” in his second impeachment trial.

Legal and prudential considerations support a narrow reading of section 3.

Disqualification proponents construe the term “insurrection” sweepingly, and the January 6 attack can be made to fit some legal definitions. However, several factors support a narrower definition for purposes of section 3 that sets a high bar for disqualification. Section 3 was enacted with a very specific purpose and meaning in mind. The “insurrection or rebellion” it referenced was the Civil War and those disqualified were Confederates who sought to destroy the United States. Given this original context, it seems reasonable to limit section 3 to actions at least roughly comparable in kind or intent if not magnitude. While January 6 was a disgrace, it doesn’t begin to compare.

Furthermore, section 3 is highly undemocratic. Many have expressed qualms about depriving voters of electoral choices, particularly the shock to our political system that would result from eliminating a candidate as prominent as Trump. The Washington Post editorialized:

“[A]cross multiple aspects of the case and on the insurrection question especially, the law is unclear. In the absence of clarity, a body of unelected officials should be reluctant to prevent the country’s citizens from choosing an elected official to lead them.”

The political shockwaves from disqualifying Trump actually go far beyond him. Section 3 potentially reaches a host of candidates for federal and state office as well as incumbent officials. Injecting a sweeping approach to section 3 into our already polarized politics would breed many lawsuits against many politicians, making our politics even more toxic and chaotic for years to come.

Two final observations:

The Supreme Court will face more heat.

The Colorado decision makes it virtually inevitable that the Supreme Court will have to decide the disqualification issue, probably on an expedited basis. It now has two other Trump-related cases that could affect the 2024 election and it may get more.^[3]See here for background. The Court is already subject to relentless (albeit spurious) attacks on its integrity and “legitimacy” from leftists who dislike its perceived turn to the right. Trump also enthusiastically plays the game of demonizing the courts when they displease him. Thus, the Court will surely face more demagoguery however it decides the Trump-related cases. It can at least minimize this by reaching consensus decisions that cut across ideological lines. Hopefully, the justices will work hard to do so.

Proponents of disqualifying Trump should be careful what they wish for.

One irony in all of this may help explain why the reaction to the Colorado decision from the left has been guarded or even negative:  Chances are that removing Trump from the 2024 presidential ballot would result in the election of his Republican replacement. Trump probably is the weakest general election candidate against President Biden, particularly if he is convicted of a crime. (His lead over Biden in early polling likely signifies only that many consider him the lesser of two evils.) Given his massive personal baggage, Trump’s favorability is confined mainly to his ardent base. If he is disqualified, whoever Republicans pick to replace him should have broader appeal to the general electorate. If the courts strike Trump from the ballot, his apoplectic core supporters would presumably rally behind that nominee out of intense anger and desire for vengeance if nothing else.

 

The increasingly realistic prospect of Donald Trump back in the White House has caused widespread alarm. New York Times writers foresee an authoritarian assault on our democracy that its institutional guardrails might be unable to contain. The Atlantic devoted an entire issue to this possibility. A prominent neocon joined in, warning of a potential Trump “dictatorship.” Others believe such concerns are nonsense or at least greatly  exaggerated. However, many factors, some systemic and some specific to Trump, suggest that a second Trump term could indeed pose an unprecedented threat to our democracy. Consider:

The current state of our democracy is fragile and potentially vulnerable to an autocrat.

The distribution of power in our constitutional system has evolved in ways quite different from what the framers envisioned. Their original concept was that most government authority over the citizenry would continue to reside in and be diffused among the states, with the federal government confined to those powers expressly assigned it by the Constitution. Over time this balance of power has reversed; the federal government now exercises by far the greatest influence over the lives of American citizens.

The allocation of power within the federal government has also shifted dramatically. Congress, originally designed as the primary policymaking branch of the federal government, has abdicated much of its authority to the president and the vast executive branch bureaucracies he controls. Congress struggles to perform even its remaining core constitutional responsibilities. In practice, therefore, the president now holds most federal policymaking authority.

On top of this, our politics are broken. An effective democracy depends upon good faith, constructive interaction between political factions that share a common set of fundamental goals and beliefs although they compete over how best to effectuate them. Today’s politics are dominated by increasingly extreme, polarized factions whose only commonality is mutual contempt and whose agendas are at odds with the more moderate views of most Americans. The results:

• • Almost two-thirds of voters believe the country is on the wrong track.
  • The public has little confidence in any of our governmental institutions.
  • Half of voters decline to identify with either party.
  • Voters likely face a 2024 presidential choice between two wildly unpopular candidates.

The public itself bears much responsibility for this state of affairs. In a democracy, the citizens get the government they deserve. As Benjamin Franklin famously observed, the founders delivered to the people of the United States “a republic if you can keep it.” However, much of the public lacks interest in keeping it, instead tuning out of our democratic processes. Only about 60 to 67 percent of eligible voters voted in recent presidential elections, about 40 percent in mid-term general elections, and about 20 percent in primaries.

Trump clearly fits the mold of an autocrat.

By any objective standard, Trump is unfit to be president. He defied presidential and democratic norms throughout his chaotic first term. He became even more outrageous in the wake of his 2020 election loss, engaging in conduct that was clearly impeachable and perhaps criminal.

Even beyond his fraudulent efforts to overturn the election, Trump’s words and actions consistently demonstrate contempt for the rule of law and the core institutions of our democracy. His rhetoric is becoming ever more extreme and unhinged. Some of this may be hyperbole given his status as a world-class liar and con artist. However, to paraphrase Maya Angelou, when someone repeatedly shows you who they are by word and deed, believe them.

It’s hard to tell exactly what Trump would do in a second term. He is not a militarist or ultranationalist bent on world conquest. Indeed, he’s more of an isolationist who would embolden rather than challenge our foreign rivals. What is clear is that Trump’s only real interest is self-indulgence. Terminating the various federal prosecutions against him would surely be his first priority. He also seems intent on pursuing “vengeance” against his many perceived enemies, whatever that might entail. Beyond this, who knows?

Whatever Trump attempts, he would have plenty of enablers and few constraints in a second term.

Despite his glaring flaws, Trump remains the odds-on favorite among GOP voters. Hardly any Republican leaders and influencers, including his primary opponents, are willing to confront him; shamefully, most still embrace him. Evidently, they are fine with electing a president who scorns our democracy.

If Trump wins in November, these folks will most likely control both houses of Congress. The Senate math already strongly favors a Republican takeover of that body, and a Trump victory probably would boost enough Republicans to maintain or increase their House majority. Few if any Congressional Republicans have the courage or integrity to buck Trump. Thus, the legislative branch would be wholly subservient to him.

Nor would Trump face pushback from within his administration. Many distinguished Republicans and others served in Trump’s first term (often at great cost to their reputations) and provided some check on his worst impulses. His executive branch appointees a second time around would probably consist overwhelmingly of Trump sycophants all too willing to do his bidding without question.

Only the federal courts will stand in Trump’s way.

The one significant guardrail against Trump’s excesses would be the federal judiciary. Thus far, the courts have held up well against Trump. Federal judges and justices, including many appointed by Trump, ruled against some of his worst policies and uniformly rejected his bogus efforts to overturn the 2020 election. There is no objective reason to doubt that they would continue to do their jobs with integrity.

Unfortunately, there may be reason to doubt whether Trump would comply with their decisions. Over recent decades, both political parties have damaged public confidence in the courts and threatened their effectiveness by politicizing the judicial appointments process. Many on the left, displeased with the Supreme Court’s decisions, continue to level baseless attacks on the Court’s legitimacy. Such efforts to undermine the credibility of the courts may come back to bite them if Trump wins. He enthusiastically plays the same game of demonizing the courts when they displease him. He might well defy them during a second term if he thinks he could get away with it.

Critics would be wise to reconsider their relentless attacks on the federal judiciary. In the awful event that Trump returns to the White House, the judiciary will be our primary, and perhaps only, defense against him.