Orange Crush
The potential fallout of ruling Donald Trump ineligible in Colorado
The Colorado Supreme Court’s ruling to ban Donald Trump from the state’s Presidential ballot is likely to be a disaster. But it’s not wrong.
The court found that:
Trump had violated the 14th Amendment by engaging in an insurrection.
The 14th Amendment’s provision to disqualify candidates applies automatically. It requires no action by Congress.
The 14th Amendment covers candidates running for President, even though Section 3 of the amendment does not explicitly include President among the covered offices.
The court stayed its ruling to give the U.S. Supreme Court time to decide whether to weigh in. But after Michigan and Minnesota courts ruled against banning Trump on 14th Amendment grounds, the dam has broken. The ruling naturally has dominated political news coverage the past few days.
Although there have been plenty of intelligent, nuanced opinions from the Right on the ruling (I recommended this episode of the Advisory Opinions podcast),
Right Wing radio predictably declared the Apocalypse is upon us. I won’t waste your time parsing through their arguments.
…
Oh, what the heck. Let’s hit a few of them.
“Now, apparently, the First Amendment is just something that MSNBC’s political opponents like to hide behind. In MSNBC’s view it’s a mere technicality designed to shield criminal conduct. That’s how the corporate media views the constitution at this point.”
- The Matt Walsh Show. No, the fact that you can’t hide under the First Amendment when committing a crime - neither “Hey, Phil, can you drive the getaway car up to the bank’s front entrance at 1:17 so we can make our escape?” or “I want you to march on the Capitol to force Congress to overturn an election” is protected speech - doesn’t mean we think the amendment is a mere technicality.
“Trump never brought a weapon to the Capitol, so he wasn’t engaged in an insurrection. And they’re like, ‘No that doesn’t matter. You don’t have to bring weapons in order to be engaged in setting an insurrection.’ Well, what if no one brought weapons? Also what if a few minutes [read: three hours] into this insurrection, the leader of it told everyone to go home?”
- Breitbart News Daily Podcast. If you summon the mob, then tell the mob what to do, that’s right, you don’t need to carry a weapon to be engaged in an insurrection. And what if no one brought weapons? That didn’t happen on Jan. 6. The police weren’t beaten with an imaginary flag pole or tased with imaginary stun guns.
“It’s no wonder that crooked Joe Biden and the Far Left lunatics are desperate to stop us by any means necessary. They’re willing to violate the U.S. Constitutions [sic] at levels never seen before in order to win this election. Joe Biden is a threat to democracy. They’re weaponizing law enforcement for high level election interference because we’re beating them so badly in the polls.” [recording of Trump speech after Colorado ruling]
“OK, he’s not wrong about this, and herein lies the issue: If Trump is correctly pointing out that Joe Biden and his minions are threats to democracy, and meanwhile Democrats are suggesting that Trump himself, thanks to January 6 and all of his quote-unquote ‘authoritarian attitudes’ is a threat to democracy - that means that both sides are now justified in doing whatever the hell they can and want to do to stop the other side from taking office.”
- Ben Shapiro Show. Trump is not correctly pointing out anything. This was a court ruling - a controversial, impactful court ruling that might well get overturned, but a court ruling nonetheless by serious justices who wrestled with difficult issues over 200 pages. Joe Biden and his minions had nothing to do with it. Heck, the case itself was brought by a handful of Republicans and independent voters. Neither the court nor Biden nor his minions violated the Constitution. And no one except Trump even talks about weaponizing law enforcement. So your both-sides argument depicts one side who tried to overturn an election and the other side who cheered a court ruling they liked.
Amid all this nonsense is reason number one why the Colorado ruling might become a disaster. It might add jet fuel to Trump’s primary campaign message: “I’m a martyr because they’re trying to punish me for orchestrating a Capitol riot, pressuring election officials to change the results, siccing a mob on my vice president for not throwing out legal ballots, and organizing fake electors to take their place. Therefore, I’m allowed to do whatever I want when I get back into office.”
I might find this risk acceptable if there was a snowball’s chance that the U.S. Supreme Court will allow any state to keep Trump off the ballot. And that a single battleground state (if Colorado is a battleground state, Trump will win in a landslide) will ban Trump.
Actually, not even that would make the risk acceptable. Because the only thing worse than the U.S. Supreme Court overturning the Colorado court would be the U.S. Supreme Court affirming the Colorado court, establishing the principle that each state has the unchecked authority to DQ a presidential candidate for participating in an insurrection.
What are the odds the Supreme Courts in Texas, Florida and who knows where else rule that Biden engaged in an insurrection because someone in China paid Hunter Biden some money a few years ago and then Hunter borrowed money from Dad to buy a car, which makes Joe an agent of a foreign power and therefore an insurrectionist? If you don’t think the Texas Supreme Court, for one, would twist the law that far for political purposes, you haven’t read its recent ruling saying the state’s medical exemption didn’t allow Kate Cox to abort her non-viable pregnancy despite multiple trips to the emergency room.
OK, so the elevation of this 14th Amendment DQ argument, ignited by a law review article by two Conservative, Federalist Society law professors and relit by the Colorado ruling, is a potential political disaster. But what about the merits of the case? Should Trump be DQ’d?
I haven’t read the original law review article, and I don’t understand all the nuances of the legal arguments. But if you’re going to make a legal argument for forcing a major presidential candidate off the ballot, that argument should be pretty darn close to a slam dunk, shouldn’t it? The Colorado justices, all appointed by Democratic governors, divided 4-3 on the ruling. Legal experts of good will, from law professors to pundits to judges, seem deeply divided on multiple points connected with the insurrection/14th Amendment issue. There is no consensus on any of these questions:
Does the amendment’s Section 3 on DQ-ing candidates cover Presidential candidates?
Is the 14th Amendment self-executing, or does it need additional legislation to at least detail the manner in which we determine a candidate is DQ’d?
What do we owe Trump in the way of due process? Is it fair for a court to kick him off the ballot, as the Colorado court did, without allowing Trump to present a full slate of exhibits and witnesses arguing that what he did wasn’t insurrection?
Have we clearly established that Trump’s words and actions around Jan. 6 constitute engaging in an insurrection?
Again, I don’t know the legal arguments. But it sure seems like the obvious, common sense answer to the last question is: Heck yes, of course Trump was engaging in an insurrection. He didn’t summon the mob to protest; he wanted them to help him stay in power someway, somehow.
Even if you buy his argument that he sincerely believed he lost because of fraud (you shouldn’t), he didn’t have a legal leg to stand on. No government authority - not his two Cabinet departments (Justice and Homeland Security) who investigated the election, not a single state Secretary of State, and not a single judge in the 60-plus court cases he filed - found evidence of fraud that would have changed a single state result. Not one. I bet Al Gore to this day thinks he was cheated out of the Presidency in 2000. Would that have justified him refusing to count Florida’s electoral votes, as Trump pressured Pence to do for multiple states with inconvenient results?
So you have a President and a few thousand followers who didn’t like the election results and tried to overturn them by force. How is that not insurrection?
The barely mentioned premise behind every screed from Right Wing media against the Colorado ruling is the same premise behind their collective anger at the 91 indictments against Trump. The premise is Trump did nothing wrong (or nothing THAT wrong). They focus 99% of the conversation on how dare the Democrats (even when it’s the courts and not the Democrats) take these extreme measures against Trump. They’re right that these measures are indeed extreme and unprecedented. But they never engage with the question, “Is it possible Trump said and did things that warrant these extreme measures?” - except to say of course he didn’t, as if that’s an argument.
Right Wing media, through sheer repetition, has succeeded in framing all of this as, “Removing a major Presidential candidate through legal machinations would bring a radical end to our democracy.”
There is another, I think fairer, framing: If Trump is re-elected, there is not the slightest doubt that when he takes the oath to defend and preserve the Constitution, he’ll be lying. We know he’ll be lying, because - among other reasons - in his previous stint as President, he violated the Constitution’s most basic principle by trying to overturn his election loss with no legal basis.
Isn’t it absurd to allow someone to run for President who cannot honestly take the oath of office?