There Is No ‘Trump Problem’

By Nick Catoggio

Wednesday, December 20, 2023

 

It’s our miserable fate to spend the holidays this year listening to people complain about “anti-democratic” attempts to strike a presidential frontrunner from the ballot who were adamant about disqualifying Barack Obama in 2008 absent proof of his status as a natural-born citizen.

 

Thank the Colorado Supreme Court for that. On Tuesday they left a ruling under the tree that’s equal parts noble and silly.

 

There’s no universe in which the United States Supreme Court will throw a major party’s presumptive nominee out of the race in the thick of a presidential campaign. Whatever the legal merits of the case that Donald Trump engaged in “insurrection” within the meaning of the 14th Amendment, the court won’t detonate its institutional legitimacy by denying the twisted American right its choice of nominee less than a year before an election. There’s never been a less suspenseful major SCOTUS ruling in my lifetime. It might even go 9-0.

 

That’s the silly part of the Colorado decision. The four judges who formed the majority to disqualify Trump did so knowing that they’ll be overruled and that it won’t be close when they are.

 

Which is quite a thing to do given the momentous political consequences that will flow from this, most of them benefiting Trump. In time, it may come to be seen as something much worse than “silly.”

 

Precisely because the ruling won’t stand and the fallout is likely to be fraught, though, I suspect the Colorado majority ruled as it did because it felt compelled to do so by the facts and the law. They put aside other concerns, including the flood of death threats that would inevitably follow a decision adverse to Trump, and did their jobs. Some brilliant conservative lawyers believe they arrived at the correct result. Fiat justitia ruat caelum: That’s how we want judges to behave when they’re under immense pressure to let politics, not law, drive their decision, no?

 

That’s the noble part.

 

I think the Colorado ruling is best understood as a sort of moral indictment. The majority surely recognized that SCOTUS, as the court of last resort, won’t have the same freedom to assess the legal merits of the 14th Amendment challenge. To salvage what’s left of the right’s faith in elections and the judiciary, and frankly to prevent civil unrest encouraged by Trump, the justices will need to reach a certain outcome in this matter regardless of whether they sincerely believe the law supports it. The Colorado Supreme Court accordingly may have viewed its own ruling as an opportunity to rebuke Trump constitutionally in a way that the U.S. Supreme Court won’t be able to, even if it’s privately inclined to do so.

 

Whether you agree with the decision or not, though, it’s now a political fact of life. Many right-wing commentators are outraged about it, and not all are Trump apologists. “What Have They Done?” an exasperated Noah Rothman asked today in a piece at National Review, referring to the Colorado court.

 

To which I would reply: “They” didn’t do anything. There’s no “they” here, only “he.” Or, more accurately, “we.”

 

***

 

There’s too much impressive intellectual firepower on both sides of the disqualification question for me to feel confident that either is correct. Some legal disputes are honestly disputable, not that you’d know it from the raft of partisans who are very, very sure that the Colorado ruling is right or wrong, as the case may be.

 

But I am confident that this would have been a different conversation on January 6, 2021. On that day, right-wingers who now scoff at the left for using the word “insurrection” for political purposes were using the word “insurrection” themselves. An earnest effort in court at the time to disqualify Trump from any future candidacy would have been received enthusiastically on the left and probably not much worse than ambivalence on the right. He was done in politics anyway at that point, right? Who would care if some court made it official?

 

We didn’t have that conversation on January 6, though. Or during the rest of 2021. Or 2022. Only this year did it become a live issue, and by then it was too late.

 

Meritorious or not, challenging Trump on 14th Amendment grounds wasn’t tenable politically once he had reestablished himself as the frontrunner for the Republican nomination. It’s the same problem as the criminal cases filed against him in Washington and Georgia: If you’re going to punish him for January 6, you can’t wait to make your move until after he’s become a formidable candidate for higher office again. At that point, the appearance of an electoral motive is so glaring that it’ll blind even otherwise sympathetic observers.

 

The disqualification case against him might be correct, but the timing is certainly wrong. Why, then, did his opponents wait so long to pursue this legal avenue against him?

 

Ironically, I think the answer is that they gave Republican voters more credit than those voters deserve.

 

There is a political dimension to Trump’s prosecutions, the same way there’s a political dimension to the 14th Amendment challenge to his candidacy: I don’t think either would have moved forward had the Republican base turned against him after his coup attempt. The story of his legal tribulations over the past year is a story of institutions scrambling to punish him for his misconduct belatedly amid the dawning realization that the American right has no intention of doing so. They’re not going to ditch him for Ron DeSantis or Nikki Haley. They don’t hold his increasingly hair-raising authoritarianism against him. They want the mastermind of January 6 back.

 

In 2021, government actors assumed they need never deal with Trump again because his own party’s voters would keep him from power. They expected the Republican base to do the right thing. And now they’re playing catch-up.

 

That’s created a Catch-22 in which institutional actors rush to fill the accountability vacuum by trying to block Trump from office and the right reacts by growing ever more insistent that he should return to office, resenting the attempt by “the establishment” to sabotage its preferred candidate. The more adamant institutions become about holding him responsible in the middle of a campaign, the more irresponsible the right becomes in resisting. Look no further than the fact that his polling went up, not down, after he was indicted on 91 criminal charges.

 

All of which is to say that there’s no “Trump problem” in the Republican Party. Its voters could have pulled the plug on him at any time; he wields only the political power that they grant him. What there is, and what’s placed the stability of the country at risk, is a Trump-voter problem.

 

As I explained previously, those voters have argued at varying times that it’s improper to impeach and remove him from office over January 6 because the criminal courts would punish him; that it’s improper for the criminal courts to punish him because voters would punish him; and that it’s improper if voters punish him because in that case the election must have been “rigged.” That’s the accountability vacuum. Many critics of the new 14th Amendment challenge to Trump’s candidacy have added another facet to it, that it’s improper to use the Constitution itself to punish him because to do so would be “anti-democratic.”

 

But it isn’t, of course.

 

The whole point of a constitutional republic is to circumscribe democracy in certain circumstances. The Constitution is itself the most exalted expression of the will of We the People, in fact, by dint of its supermajority requirements for ratification and amendment. Which means sometimes, by design, the majority doesn’t get its way.

 

A state might pass a law banning flag burning and that law might enjoy strong support, but it’s going straight into the dumpster in court because the First Amendment trumps the majority’s will. That’s “anti-democratic.” It’s likewise “anti-democratic” for Congress to remove the duly elected president for high crimes and misdemeanors, as we were told repeatedly by Trump apologists during the final year of his term, yet the Constitution grants that power too. And the Constitution requires candidates for president to be at least 35 years old and natural-born citizens of the United States, which means no matter how much you might want to vote for a 34-year-old from Kenya, your vote won’t count. Also quite “anti-democratic.”

 

So there’s nothing inherently unusual about the 14th Amendment adding another democracy-defying requirement for office. We can debate whether Trump is an “officer” for purposes of the amendment, or whether he received due process before being adjudged guilty of insurrection. But to complain that the Colorado ruling is “anti-democratic” is really just a way to say that you think the Constitution shouldn’t bar insurrectionists from holding office. 

 

You’re free to make that argument, although I don’t know why a decent person would want to. But so long as it’s in the 14th Amendment, there’s no case that it’s “anti-democratic” to apply it. 

 

And frankly, those who supported a coup attempt in the recent past have some nerve presuming to lecture others about what democracy requires. To quote a wise man, “Insurrection is largely, if not exclusively, a war upon the first principle of popular government—the rights of the people.”

 

The fact that most of the right can’t or won’t see all of that makes it easy to grasp why the Colorado ruling will, almost certainly, benefit Trump on balance.

 

***

 

It might not.

 

Joe Biden and his party will spend the better part of the next year making the case that Trump is unfit for office. Having a state Supreme Court declare him ineligible constitutionally because he’s an “insurrectionist” for purposes of the 14th Amendment strengthens that case.

 

At some point, between the coup plots and the impeachments and the felonies and the disqualifications, swing voters might conclude that this is all simply too much and rule him out. If you believe the latest polling, in fact, nearly a quarter of Trump’s own supporters say he shouldn’t be the GOP’s nominee if he’s convicted of a crime before the convention. He’s already on thin ice; yesterday’s decision may have made it thinner.

 

There’s another, darker way in which this could hurt him. If one of his fans lashes out violently over the ruling, it will remind the electorate in a vivid way just how foreign and dangerous Trump’s political dynamic is. The fact that the candidate himself is comfortable using intimidation as a political tactic and will doubtless say something quasi-encouraging in the aftermath of any terror (“the people are understandably angry!”) will only underline it. As our friend David French pointed out, the reason Americans are nervous about the Colorado decision is because they know Trump is an insurrectionist, and what that portends.

 

That means the Republican “hostage crisis” about which I’ve written many times risks becoming a national hostage crisis. It already is for the Supreme Court, arguably, if I’m right in thinking that fears of civil unrest will influence their decision on Trump’s eligibility.

 

I don’t think the Colorado ruling will hurt Trump on balance, though. To the contrary.

 

For one thing, how much can all of this hurt him realistically if the Supreme Court ends up ruling in his favor—probably with at least one liberal justice joining the majority? That smells like vindication to me. Swing voters who might otherwise be nervous about electing an “insurrectionist” president will take heart that John Roberts and the gang considered the question and concluded that Trump isn’t one after all. So much for Joe Biden’s “danger to democracy” narrative.

 

The ruling is worse for Trump’s Republican primary opponents. The consensus on social media after the decision in Colorado was released was that it would extinguish whatever flicker of a chance Haley and DeSantis still have at an upset. The Catch-22 dynamic will reassert itself, probably more forcefully than it did after Trump was indicted. Republican voters, having relinquished all sense of shame for the sake of supporting him, will resent this latest attempt to shame them ferociously.

 

They will not be deprived of their sacred right to cast a ballot for the first presidential candidate in American history to warrant a credible charge of having engaged in insurrection against his own country. Sorry, Nikki and Ron.

 

Almost needless to say, the ruling will also inspire Republican politicians to close ranks around Trump even as the reporting about his post-liberal designs for a second term grows more unsettling. The more obsequious ones will perform the “O captain, my captain” routine with gusto while others will be lower-key, if no less hysterical in substance. But there’ll be zero support for the Colorado decision from any GOP official who hasn’t already departed for the Cheney-Romney political wilderness. That’s bound to influence late-deciders in New Hampshire and South Carolina who may have recently found themselves Haley-curious but are now being drafted anew into Trump’s latest Battle for Civilization.

 

And if seeing the dominos fall among their own party’s leadership doesn’t bring Republican voters into line, seeing prominent Democrats cheer the Colorado decision will. At least one blue state is moving ahead with plans to boot Trump from its own ballot after Tuesday’s ruling. Democratic officials like Sen. Chris Coons and Rep. Jamie Raskin are cheering the outcome. Any right-wing voter inclined to believe that there’s nothing more than partisan politics to this latest legal blow—and practically all of them are so inclined—will soon find their suspicions seemingly confirmed by the left’s gleeful reaction.

 

If Trump does end up losing next fall, his grievances over the 14th Amendment saga will be folded into similar grievances over impeachment and indictment to persuade Republican voters that the 2024 election was also “rigged,” at least in the sense of being grossly unfair. And that will make him more viable in 2028 than he otherwise might have been.

 

Which is insane, of course.

 

It’s nothing less than insane that we’ve arrived at a point civically in which being kicked off a state’s ballot for fomenting insurrection benefits a candidate in myriad ways.

 

And we mustn’t lose sight of who’s responsible for that insanity as this plays out.

 

***

 

All I want from this process is clarity about where the blame for it ultimately lies. The court in Colorado didn’t force this drama on the country. Even Trump didn’t force it.

 

Republican voters did.

 

They had several qualified candidates for president to choose from in this year’s primary. One, Ron DeSantis, even positioned himself to the right of Trump in case the GOP electorate insisted on a nominee no less populist than the incumbent. They didn’t want him. They wanted Trump, warts and all.

 

This morning I thought again of my colleague Kevin Williamson’s post at National Review the day after Trump clinched the nomination in 2016. That post was short because nothing beyond the warning in the title really needed to be said: “Remember, You Asked for This.”

 

The American right asked for all of this. And it keeps asking for more.

 

Anyone who denies that by insisting on assigning principal blame for the Colorado ruling elsewhere, whether to the court or to Trump himself, fails to grasp that to the degree that it needs to be grasped if we’re to avoid a catastrophe next November. 

 

So, say it with me: If there really is a constitutional crisis coming, it’s not “America” that willed it. The right did.

 

It’s not “the Resistance” that’s going to make Trump president again. The right will. They’re the one who’ll be casting the ballots for him. Denying them their moral agency by framing their terrible choices as irresistibly dictated by provocation is little better than leftists blaming Israel for Hamas’ depravity.

 

All of this could have been avoided had Trump been convicted at his impeachment trial and disqualified from future office in 2021. But it wasn’t Senate Democrats who refused to do that. It was the right as represented by Senate Republicans, who feared they’d be punished electorally—and maybe more than electorally—by their base if they held him accountable for the most impeachable thing a president has ever done.

 

There is no “Trump problem.” The actual problem is much worse. And it won’t be solved even if he keels over tomorrow.