{"id":31036,"date":"2024-01-10T12:54:15","date_gmt":"2024-01-10T20:54:15","guid":{"rendered":"https:\/\/occupysf.net\/?p=31036"},"modified":"2024-01-10T12:54:16","modified_gmt":"2024-01-10T20:54:16","slug":"the-case-for-disqualifying-trump-is-strong","status":"publish","type":"post","link":"https:\/\/occupysf.net\/index.php\/2024\/01\/10\/the-case-for-disqualifying-trump-is-strong\/","title":{"rendered":"The Case for Disqualifying Trump Is Strong"},"content":{"rendered":"\n

David French\/The New York Times<\/strong> <\/p>\n\n\n\n

\"TheDonald Trump. (photo: Intercept)<\/strong><\/p>\n\n\n\n

09 january 24<\/strong> (rsn.org)<\/p>\n\n\n\n

It\u2019s been just over two weeks since the Colorado Supreme Court ruled<\/a> that Section 3 of the 14th Amendment disqualifies Donald Trump from holding the office of president of the United States, and I spent way too much of my holiday vacation reading the legal and political commentary around the decision, and as I did so, I found myself experiencing d\u00e9j\u00e0 vu. Since the rise of Trump, he and his movement have transgressed constitutional, legal and moral boundaries at will and then, when Americans attempt to impose consequences for those transgressions, Trump\u2019s defenders and critics alike caution that the consequences will be dangerous or destabilizing.<\/p>\n\n\n\n

There is already a surge in violent threats<\/a> against the justices of the Colorado Supreme Court. The Yale Law School professor Samuel Moyn has argued<\/a> that \u201crejecting Mr. Trump\u2019s candidacy could well invite a repeat of the kind of violence that led to the prohibition on insurrectionists in public life in the first place.\u201d Ian Bassin, a Protect Democracy co-founder, has suggested<\/a> \u2014 and I agree \u2014 that even legal analysis of the 14th Amendment \u201cis being colored by the analyst\u2019s fear of how Trump and his supporters would react\u201d to an adverse ruling.<\/p>\n\n\n\n

This is where we are and have now been for years: The Trump movement commits threats, violence and lies. And then it tries to escape accountability for those acts through more threats, more violence<\/a> and more lies. At the heart of the \u201cbut the consequences\u201d argument against disqualification is a confession that if we hold Trump accountable for his fomenting violence on Jan. 6, he might foment additional violence now.<\/p>\n\n\n\n

Enough. It\u2019s time to apply the plain language of the Constitution to Trump\u2019s actions and remove him from the ballot \u2014 without fear of the consequences. Republics are not maintained by cowardice.<\/p>\n\n\n\n

To understand the necessity of removing Trump, let\u2019s go first to the relevant language from the 14th Amendment and then to some basic rules of legal interpretation. Here\u2019s the language<\/a>:<\/p>\n\n\n\n

\u201cNo person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.\u201d<\/p>\n\n\n\n

You don\u2019t have to be a lawyer to comprehend those words. You simply need some basic familiarity with American civics, the English language and a couple of common-sense rules of thumb. First, when interpreting the Constitution, text is king. If the text is clear enough, there is no need for historical analysis. You don\u2019t need to know a special legal version of the English language. Just apply the words on the page.<\/p>\n\n\n\n

Second, it\u2019s crucial to understand that many of the Constitution\u2019s provisions are intentionally antidemocratic. The American republic is a democracy with guardrails. The Bill of Rights, for example, is a check on majoritarian tyranny. The American people can\u2019t vote away your rights to speak, to exercise your religion or to due process. The Civil War Amendments, including the 14th Amendment, further expanded constitutional protections against majoritarian encroachment. Majorities can\u2019t reimpose slavery, for example, nor can they take away your right to equal protection under the law.<\/p>\n\n\n\n

So when a person criticizes Section 3 as undemocratic or undermining democracy, your answer should be simple: Yes, it is undemocratic, exactly as it was intended to be. The amendments\u2019 authors were worried that voters would send former Confederates right back into public office. If they had believed that the American electorate was wise enough not to vote for insurrectionists, they never would have drafted Section 3.<\/p>\n\n\n\n

Moreover, you\u2019ll note that the plain text of the amendment doesn\u2019t require a court conviction for insurrection or rebellion. Again, this is intentional. The 14th Amendment originally applied to countless Confederate soldiers and continued to apply to them even after they were pardoned<\/a> by President Andrew Johnson in 1868. It was not until the Amnesty Act of 1872<\/a> that most former Confederates were permitted to serve in office again.<\/p>\n\n\n\n

Which brings us to Donald Trump, who is currently facing a host of federal and state criminal charges related to his plot to overturn a lawful election and retain power illegitimately. He wasn\u2019t merely involved in legal subterfuge, including by pressuring public officials to alter vote totals. He summoned the mob, told them to march to the Capitol and enlisted them to \u201cfight like hell.<\/a>\u201d (At the same event, Rudy Giuliani urged \u201ctrial by combat.<\/a>\u201d) When the attack on the Capitol was underway, he inflamed the crowd in real time by tweeting<\/a> that \u201cMike Pence didn\u2019t have the courage to do what should have been done.\u201d<\/p>\n\n\n\n

Yes, he also asked the crowd to protest \u201cpeacefully and patriotically.\u201d But as the Colorado Supreme Court affirmed, this \u201cisolated reference\u201d does not \u201cinoculate\u201d Trump, given \u201chis exhortation, made nearly an hour later, to \u2018fight like hell\u2019 immediately before sending rallygoers to the Capitol.\u201d<\/p>\n\n\n\n

What do you call the effort to overthrow a lawfully elected government through a combination of violence and legal subterfuge? In its ruling, the Colorado Supreme Court reviewed a variety of colloquial and legal definitions of insurrection and reached a common-sense conclusion \u201cthat any definition of \u2018insurrection\u2019 for purposes of Section 3 would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.\u201d<\/p>\n\n\n\n

I have respect for those who argue that Jan. 6 was merely a riot and not a true \u201cinsurrection or rebellion,\u201d but the clear and undisputed aims of the Trump scheme are what elevate his misconduct to rebellious status. The effort to steal the election wasn\u2019t a mere protest. It was an effort to change the government of the United States. I was open to Jonathan Chait\u2019s argument<\/a> that the term \u201cinsurrection\u201d is not the \u201cmost precise\u201d way to describe Jan. 6, but he lost me with this distinction: \u201cTrump was not trying to seize and hold the Capitol nor declare a breakaway republic.\u201d<\/p>\n\n\n\n

It\u2019s true that Trump wasn\u2019t declaring a breakaway republic, but he was attempting to seize and hold far more than the Capitol. He was trying to illegally retain control of the executive branch of the government. His foot soldiers didn\u2019t wear gray or deploy cannons, but they did storm the United States Capitol, something the Confederate Army could never accomplish.<\/p>\n\n\n\n

There are also respectable arguments that the reference to \u201cany office, civil or military, under the United States\u201d does not include the president. As Kurt Lash wrote last month in The Times<\/a>, \u201cIt would be odd to stuff the highest office in the land into a general provision that included everything from postmasters to toll takers.\u201d He called the text \u201cambiguous.\u201d<\/p>\n\n\n\n

But is it, really? As Steven Portnoy wrote in an excellent piece for ABC News<\/a>, the question of whether the section applied to the president and vice president was raised in the ratification debates, and Senator Lot Morrill of Maine provided the answer: \u201cLet me call the senator\u2019s attention to the words \u2018or hold any office, civil or military, under the United States.\u2019\u201d<\/p>\n\n\n\n

Remember, when reading the Constitution, words still retain their ordinary meaning, and the president is an officer under the United States by any conventional meaning of the term. In many ways, it would be fantastical to conclude otherwise. Is it really the case that insurrectionists are excluded from every office except the most powerful? One should not read constitutional provisions in a way that reaches facially absurd results.<\/p>\n\n\n\n

Moreover, it\u2019s important to note that none of the legal analysis I\u2019ve offered above relies on any sort of progressive or liberal constitutional analysis. It\u2019s all text and history, the essence of originalism. In fact, the most influential law review article<\/a> arguing that Trump is disqualified is by William Baude and Michael Stokes Paulsen, two of the most respected conservative legal minds in the United States.<\/p>\n\n\n\n

So no, it would not be a stretch for a conservative Supreme Court to apply Section 3 to Trump. Nor is it too much to ask the court to intervene in a presidential contest or to issue decisions that have a profound and destabilizing effect on American politics. In 2000 the Supreme Court effectively decided a presidential election at the finish line, ending Al Gore\u2019s bid in a narrow decision that was criticized by some as partisan in nature.<\/p>\n\n\n\n

Moreover, in decisions ranging from Brown v. Board of Education to Dobbs v. Jackson Women\u2019s Health Organization, the court has been quite willing to issue sweeping rulings that both inflame dissent and trigger political backlash. Fear of a negative public response cannot and must not cause the Supreme Court to turn its back on the plain text of the Constitution \u2014 especially when we are now facing the very crisis the amendment was intended to combat.<\/p>\n\n\n\n

Indeed, the principal reason the fear of negative backlash is so strong and so widely articulated is the seditious nature of the Trump movement itself. When the Supreme Court ruled against Gore, there was no meaningful concern that he\u2019d try to engineer a violent coup. But if the court rules against Trump, the nation will be told to brace for violence. That\u2019s what seditionists do.<\/p>\n\n\n\n

Republicans are rightly proud of their Civil War-era history. The party of Lincoln, as it was known, helped save the Union, and it was the party of Lincoln that passed the 14th Amendment and ratified it in statehouses across the land. The wisdom of the old Republican Party should now save us from the fecklessness and sedition of the new.<\/p>\n","protected":false},"excerpt":{"rendered":"

David French\/The New York Times Donald Trump. (photo: Intercept) 09 january 24 (rsn.org) It\u2019s been just over two weeks since the Colorado Supreme Court ruled that Section 3 of the 14th Amendment disqualifies Donald Trump from holding the office of president of the United States, and I spent way too much of… Continue reading → <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/31036"}],"collection":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/comments?post=31036"}],"version-history":[{"count":1,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/31036\/revisions"}],"predecessor-version":[{"id":31037,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/31036\/revisions\/31037"}],"wp:attachment":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/media?parent=31036"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/categories?post=31036"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/tags?post=31036"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}