It’s Too Late for the Courts to Bump Trump

By Christian Schneider

Thursday, December 21, 2023

 

The NBA’s Detroit Pistons, distinguished for a 24-game losing streak, can take solace in one fact: Their record of futility is still half that of former president Donald Trump, who, while attempting to undo the result of the 2020 election, lost more than 60 consecutive court cases in dozens of venues.

 

A great deal of the cases brought by Trump and his allies (including more than 100 members of Congress) were tossed out because they were based on abject nonsense. But another factor working against them was their timing. Typically, charges to election law must be made before the results of the election, not after. By the time we learn who won, objections to rules and policies everyone knew before the election are simply sour grapes. (This is why Trump didn’t challenge similar laws in states he won.)

 

Ironically, the same issue of judicial timing could bail Trump out as he seeks the 2024 Republican nomination. This week, the Colorado supreme court ruled that Trump can be left off the state’s 2024 primary ballot pursuant to the U.S. Constitution’s 14th Amendment, which says that no person can “hold any office, civil or military, under the United States” if they “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The court carefully laid out its case that the presidency is, in fact, an “office under the United States” and that Trump had engaged in an “insurrection” on January 6, 2021.

 

The Colorado court’s argument is persuasive: Trump’s plot to overturn the 2020 election, including sending a mob into the U.S. Capitol to disrupt the counting of the electoral votes, was certainly an “insurrection.” By that reasoning, he plainly could be left off state ballots.

 

But like his own election challenges in 2020, this is all simply too late. Republican primary voters start voting in a matter of weeks. Disqualifying a candidate who attempted to overturn an American election is warranted. But doing so three full years after the candidate commits the insurrectionist act and one full year after he announces he’s running again is way past the due date for such a monumental action.

 

It isn’t as if we have learned anything new in the past three years that would suddenly make Trump ineligible for the ballot. Investigation after investigation has turned up what was blatantly evident the day the Capitol was stormed: Trump had promised bedlam for months, and his virulent fans took what they heard as signals to rush toward Congress and threaten the safety of the representatives certifying the election. The American public has sat with this information since then, and a fair number of them still appear willing to reward Trump with another term as president.

 

Of course, the real blame for all this goes to the gutless lickspittles in the U.S. Senate, who, in an impeachment proceeding just weeks after the insurrection, could have restored the nation’s dignity and voted to bar Trump from ever running again. But then–majority leader Mitch McConnell hid behind the U.S. legal system, predicting that Trump could be taken care of by judges and juries. Unfortunately, the presence of those judges and juries has only strengthened Trump’s standing, to the point where primary voters are now on the cusp of electing a quite possibly soon-to-be-convicted felon to be the GOP presidential nominee. It will forever remain a stain on McConnell’s otherwise admirable run in public office.

 

But while the Senate failed in its duty, these legal challenges to Trump’s ballot-worthiness could have been brought long before now. A few weeks before voters begin caucusing in Iowa is not the time to start hashing out what “office” or “insurrection” means.

 

Trump’s supporters — and even some who oppose him — have argued that what happened on January 6 was not an “insurrection” in the sense meant when the 14th Amendment was ratified. The amendment was clearly meant to keep officers who had fought against the Union during the Civil War from holding high elected office.

 

January 6, of course, was not the Civil War, they argue. (Among those making this argument is the great George Will, who is wrong about as often as the Pistons win an NBA championship.) But just because January 6 wasn’t as cataclysmic as a bloody four-year war doesn’t mean it falls outside the definition of “insurrection.” Arguing that a reduced level of insurrection isn’t actually an insurrection smacks of George Bluth Sr.’s excuse that he was only in prison because he had engaged in some “light treason.”

 

But even if one believes the Colorado supreme court’s decision is bold, unafraid, and legally correct, it still prompts the question: Why now?

 

The decision puts the U.S. Supreme Court in an impossible situation. If the Court reverses the decision, it will be undermining its own already shaky standing with the public. Splitting hairs by arguing that a riot in which Capitol police were pummeled and Trump supporters, inflamed by Trump’s lies, chanted “Hang Mike Pence” wasn’t an insurrection won’t fly. We all saw what happened and we know who is to blame.

 

Then again, if the Court allows the Colorado standard to stand, America could be looking at a “light civil war.” Is there any doubt that GOP states would begin knocking Democrats off ballots for shaky reasons? (Take, for instance, a party leader arguing that a candidate had hidden that he was born in a foreign country and therefore not eligible to run. Heard that one before?)

 

Anti-Trumpers who support the new Colorado standard argue that Democrats who don’t engage in insurrections shouldn’t be worried about the standard being applied to them. Yet it is unclear what world they have been living in for the past eight years. Once ballot banishment becomes possible, Team MAGA will use every opportunity they have to brandish it, for rare justifiable reasons and myriad concocted ones. Many more state elections will become court battles — courts, incidentally, that will not have the mechanisms to enforce their decisions.

 

Some in the anti-Trump camp have argued there is clear precedent for the Constitution to dictate who is disqualified from running for office — just ask foreign-born citizens and people under the age of 35. But in those cases, we know those facts about candidates before the campaign even starts; it is entirely different to adjudicate the extent of their offending actions just before the votes start flying.

 

It is often said that hard cases make for bad law. But tight timelines also rush courts into poorly reasoned, potentially damaging decisions. Trump shouldn’t be anywhere near the presidency after the 2024 election, but ripping that choice away from voters just as the ballots are to be cast is an invitation for chaos from which America may never recover.