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.
No comments:
Post a Comment