The Biden Justice Department Should Take a Stand on Disqualifying Trump

National Review Online 

Wednesday, January 17, 2024 

 

Under the appropriately accelerated schedule set by the Supreme Court, arguments will be heard on February 8 to determine whether to disqualify Donald Trump from the ballot in Colorado. Because the issues before the Court are all questions of federal law, and because most of them are not particular to the process and evidence used in Colorado, it is likely that the Court’s decision will effectively settle the question of whether Trump can appear on ballots nationwide. 

 

Amicus curiae (friend of the court) briefs supporting Trump are due this Thursday, and those supporting the Colorado challengers are due January 31. Briefs taking legal positions but not supporting either party are also due Thursday. That means an hour of decision fast approaches for Democratic officials in general, and for Joe Biden and his Justice Department in particular. 

 

The Court has not specifically asked for a brief from the solicitor general, as it sometimes does. But on a question this weighty, one would expect the Department of Justice to weigh in. It should do so. 

 

Any time the solicitor general files a brief in the Supreme Court, there is a potential for tension. On the one hand, the office is supposed to represent the interests of the United States, and where it is not bound by any duty to defend an act of Congress or the executive branch, it ought to offer its dispassionate best judgment of the law. On the other hand, the office and the Justice Department in general answer to the president, who alone takes the oath to take care that the laws be faithfully executed. It therefore reflects the position of the entire administration. 

 

Here, that puts Biden in a bind, because he would prefer to have things both ways. In his immediate reaction to an all-Democratic state court throwing Trump off the ballot, Biden told reporters, “Certain things are self-evident. You saw it all. Now, whether the 14th Amendment applies, I’ll let the court make that decision. But he certainly supported an insurrection. No question about it. None. Zero.” Biden would like the support of people who think Trump should be barred for engaging in insurrection, but he doesn’t want to take the heat from the American public for openly arguing that his potential general-election opponent should be removed from the ballot. But he took an oath to the Constitution. He should take a stand on how it applies. 

 

It’s all the more appropriate for Biden and his Justice Department to take a position because of the ongoing Democratic campaign to delegitimize the Supreme Court. The cheap and easy way for Biden to play this is to stay out of the case, so he can maintain deniability about urging that the voters be stripped of a choice, and then turn around when the Court rules for Trump and blast them as a lawless, corrupt MAGA Court that needs packing. But if Biden wants to take that position, he ought to have the courage of his constitutional convictions and actually order his solicitor general to make the case that the 14th Amendment requires that his predecessor be removed from the ballot. 

 

Put up or shut up.