You can’t be President of the United States if, at any point previous, you fomented an insurrection.
It’s a simple proposition: If you try to overthrow the government by force, illegal contrivance or both, and you fail, you can’t then be the government through the ballot.
That’s enshrined in the Constitution. But the general idea of it is so self-evident that it forms the basis for proverbs and idioms. You don’t let foxes in henhouses. And so on.
The notion that Donald Trump who, whatever you want to say about the events of January 6, 2021 and the machinating that preceded it, certainly did try to obstruct the transfer of power following the last election, is somehow exempt from the relevant constitutional provision seems farcically unserious. Here’s what that provision says:
No 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.
Taken literally (and given the language, I’m not sure how else to take it), that appears not only to disqualify Trump from being president (is a president somehow not “an officer of the United States”?), but also to disqualify dozens of sitting lawmakers.
In judging Trump ineligible to hold office on Tuesday, a majority at The Colorado Supreme Court dismissed the notion that the relevant constitutional language doesn’t apply to Trump as counterintuitive and farcical. That’s not how they put it exactly, but the justices’ strategic use of italics spoke volumes about their apparent disdain for the idea.
“President Trump asks us to hold that Section 3 disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath breakers from virtually every office, both state and federal, except the highest one in the land,” the court wrote. “Both results are inconsistent with the plain language and history of Section 3.”
More importantly, “both results,” if upheld by the Supreme Court (which will ultimately decide the matter), would be inconsistent with common sense. Surely (surely) we don’t want to establish, as precedent, immunity for presidents who decide to mount insurrections.
A lot (everything) hinges on whether you do, in fact, believe Trump is an insurrectionist. He is. And, to the extent it’s possible, I say that without animosity.
Early in Trump’s presidency, I engaged in frequent satire at his expense and as someone steeped in political theory, I do judge Trump to be a dangerous imbecile, particularly given the extent to which he embodies the American right’s embrace of illiberal authoritarianism and soft autocracy masquerading as democracy à la Viktor Orbán.
But, barring a turn for the absolute worst, it’s unlikely that America will backslide enough politically in my lifetime to impact me personally. And I have no children. So, if the country wants to vote away the republic — to write the most ironic chapter in the short history of modern representative government by ceding democracy in a referendum — so be it. Best of luck to you. “Thoughts and prayers,” as they say.
The point is: I don’t much care either way. I’ll probably be fine for the rest of my days regardless, and I’m anyway more likely to die from an illness or an accident than I am to be executed by some death squad in a post-democratic America. So I can opine on Trump and the implications of a prospective second Trump term from a relatively unbiased perspective. Without animosity, as I put it.
With that in mind, Trump tried to subvert the transfer of power following the last election, first through a conspiracy and then, when that didn’t work, by summoning a mob. Those are the facts. They’re incontrovertible.
Regardless of what any document says (or doesn’t say), and irrespective of what scholars imagine they can divine about the “true” intent of this or that provision, common sense dictates that a man who wittingly, flagrantly and violently transgresses the very thing he swore (on a holy book) to protect, shouldn’t be put in charge of that thing again.
That isn’t controversial as a general precept. It’s controversial in this context, though, and not so much because there’s disagreement about whether Trump’s an insurrectionist. Rather because, if we’re honest, around a third of Americans want to try an Orban-style form of illiberal democracy on the (wholly misguided) assumption that as long as they’re on the right team, everything will be fine. But everything won’t be fine in that scenario. Really it won’t.
While America probably wouldn’t unravel in a hypothetical Trump second term, and maybe not in what would almost surely be a third Trump term assuming he gets a second, his very presence on the ballot is a testament to the erosion of the rule of law in America. If he becomes president again, the rule of law will be essentially gone. Without the rule of law, the whole project will fall apart. Sooner or later. The debate is around which one (i.e., sooner or later).
We can argue about whether the most likely outcome of a Trump second term is a rapid descent into an authoritarian nightmare under Trump himself (as the former president’s most ardent critics contend) or the inauguration of a new era in American politics defined by the slow degradation of democratic norms such that within two or three decades, only the trappings of democracy remain. Either way, a second Trump term would be the beginning of the end.
I think the Trump supporters would contend (assuming they engage with reality at all instead of pretending it’s a FBI/Antifa false flag operation or a peaceful promenade by flag weaving retirees) that Jan 6th was a common riot not unlike the ones that took place during the BLM summer and that they weren’t seriously trying to overthrow anything, just vent their righteous patriotic anger at a bunch of fickle faithless elites who look down on them…
And can you really call that a coup attempt?
I’m sorry, which BLM riot did the president of the United States personally summon thousands of people to a location and then point them towards a building and say “you have to fight like hell or you won’t have a country anymore”? I must have missed that one.
Do I look like I agree with that argument? But I’m saying this is what we have to overcome. A friend of mine, sympathetic to Trump because she hates academic and business elites, told me “you mofos, this was just a bit of a Saturnalia, some guys letting off of steam and you’re weaponizing it because you just hate the white trash that is the base of Trump”.
What happened last time we just “overcame” an insurrection? We got Jim Crow laws, the southern strategy, and every other racist idea that has led up to the point where people actually cared that a guy was slowly and tortuously murdered in broad daylight because an officer of the law decided he wanted to do it. What is the point of having laws if we don’t hold the most egregious lawbreakers accountable? I mean we’re arresting illegal immigrants for a misdemeanor but we’re going to give a man who had the most power in the most powerful country a pass because people like him and think he’s the new Jesus? Stop being sympathetic to people who believe propaganda and start thinking logically about what matters and doesn’t. I am as anti-tribalism as H is, I don’t subscribe to a political party, but I sure know what democracy is and what it isn’t. Martial law, fake electors, and duping a mob of true believers into violently attacking the seat of power is NOT the country I want to serve and participate in. Let’s stop cow-towing to people who make decisions based on the ideas of others they view as smarter than them on their television telling them what they want to hear. We are smarter than they are, our ideas are not created from a place of “how can I monetize emotions”, but on intaking factual information and applying logic and reason. That’s who should be driving the country forward at this point. If Trump isn’t the poster child for the 14th amendment then there is no reason for it to continue existing. And that’s kind of the point isn’t it? Your friend and everyone else who still supports Trump is tired of democracy, they want to see the Constitution rewritten to give them and only them power. Considering that 60% of the populace disagrees with them, I doubt that would ever work out long term. They’ll get that bloody civil war they want though, and boy won’t that be a sight!
“not the country [you] want to serve and participate in”… I’m with you. How do we kill or exile 35% of the pop?
“that’s who should be driving the country forward”. Again, I’m with you but that’s not a democracy, that’s a oligarchy/democracy in the Athenian mold. “Only adult male Athenian citizens who had completed their military training as ephebes had the right to vote in Athens. The percentage of the population that actually participated in the government was 10% to 20% of the total number of inhabitants, but this varied from the fifth to the fourth century BC”. You can read about the (political) fights between the aristocratic faction (Aristides the Just) and the democratic faction (Themistocles and his naval strategy – his power base was the rowers, the lower classes vs the aristocratic hoplites, the rich men who could afford the armour to stand in the line)
And yeah to civil war but, err, they are the ones with the guns and, at this point, how confident are you that the army rank and file, if not the officer class, would not go over to Trump? My understanding is that evangelical nutters and midwestern hard core conservatives are over represented in the US army at this point…
That Trump’s action before, during, and after Jan. 6 disqualify him from running again is what the Framers of our Constitution would call self-evident. It’s too bad, and, really, a travesty, that so-called orginalists on the Supreme Court choose to interpret the document selectively to support their own political and religious biases.
TBF, they never were originalists. They’ll just use any argument, even the truth, if it helps them achieve their political goals.
If the US Supreme Court wants to overturn what the Colorado Supreme Court did here, I don’t think it’s hard to come up with the legal reasoning to do so. Read the high ranking positions that were named in the 14th amendment explicitly and note that President isn’t on that list. Or note that Trump doesn’t have a factual finding against him that he engaged in insurrection.
Rulings are often as much about political considerations as verbal logic though, as much as the judiciary would like to pretend otherwise.
I’m glad Colorado is trying at least. The argument for the 14th amendment applying seems to me at least as good as that against. Getting the Supreme Court on record on this issue has its own value.
For me, the thought experiment that makes this a relatively simple call for the Court is this: Would Congress have allowed Jefferson Davis to run for the presidency of the re-unified United States in the election of 1868?
I like this angle, but I wonder how you get it to be the winning opinion. The liberal justices aren’t likely to use originalism style reasoning as the core of their justification. How likely is it that 3+ conservatives vote with them so they don’t have to concede much in how the opinion is written?
This supreme court doesn’t find it hard to come up with any legal reasoning at all, to support any whacko left-field theory that they like. What will be the breaking point of the electorate’s patience for a court that continually decides law against precedent that conflicts with the viewpoint of the majority of people? And what kind of riots will we see when a majority of people do feel that the rule of law is no longer valid in the United States because of such opinions?
From Gorsuch when he was a judge in CO: “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” It will be interesting to see how he rules on this. Also, whether Thomas recuses himself from the case due to his wife’s Jan 6 involvement.
I concider Senate approval to invade Iraq as the beginning of the end of the American Empire.
To Trumpers I have one simple question.
On January 6 the Capital of the United States was invaded by insurrectionists or patriots, your choice. The Commander and Chief of The United States sat and watched it on TV and did nothing for either side.
What a coward. Do we really want a coward as Commander and Chief? Either way, deriliction of office.
Humans are such self serving, self righteous animals, not all have the Warrior gene and that man does not. He is just a loudmouth bully.
Donald Trump declares that 1/6 insurrectionists incarcerated to be considered hostages.
If the Supreme Court needs a decisive conviction of Trump in a lower court other than his own public statements, then the court belongs in a private academic setting and not part of the public reality, or a church somewhere. They are judge and JURY and should accept that responsibility even if it warrants spousal disapproval.
What about their billionaire benefactors? Gotta worry about those guys too!
IRM, I agree, the court has shown they have few qualms selectively reading and applying their holy texts to support (what are perceived by many to be) preordained political views. The notion that the Presidency isn’t an “office” is simply ridiculous. This is part of what Colorado zeroed in on – the linguistic gymnastics that are being used to justify this (previously fringe) theory of the unitary executive. Sadly, I fear the Court will make a few citations of various statutes, dredge up some historical context, and frame it in the narrative that courts aren’t justified suppressing the will of the voter.
I don’t think leaving out the Presidency from the meaning of office here is a particularly weird interpretation from a legal reasoning standpoint. You can construct it from basic techniques in a statutory interpretation text book. You ask what was the intention of the drafters and then say the word Senator is there, so they knew how to single out high offices and chose not to write in President.
All legal reasoning is tortured to some extent, but this kind of argument doesn’t rate. I don’t think the Colorado Supreme Court’s does either though, so I am glad they made it.
I agree that “courts shouldn’t suppress the will of the voter” is the most likely cover to get used at the next level to overturn Colorado if they decide to. The point is to make them use it. You get to throw it back at them if Trump tries to mess with the election process again. It strengthens political opposition to the court. If they are going to wield that power, at least have them do it out in the open.
I’m in the same position as H — no klds and relatively insulated (now) from whatever the climate or anti-democratic cultists ultimately bring to bear on my patch of ground. But despite my years, it has been a revelation to me how flimsy our norms, laws and even the Constitution have proven to be since Trump’s elevation. Despite mounting evidence of his crimes, whether empirical, attested or often recorded, we continue to struggle to reach any sort of resolution and instead, ponder notions of the unitary executive, or what the words “collusion”, “obstruction,” “office” or “insurrection” actually mean. I mean the founders would be laughing at us if they weren’t so horrified.
But setting aside insurrection for the moment and focusing on the other aspect of H’s Constitutional quote re “aid or comfort to [our] enemies.” We know Russia interfered in the 2016 election — kind of a nothingburger since we do the same to other countries. But we also know that Trump insisted on meeting Lavrov and Kislyak in the White House without adult supervision, and both seemed to have advance word on Comey’s firing. We also know he stole classified and sensitive intelligence regarding Russia that has now disappeared, and both State and the CIA have reported an unprecedented loss of our Russia-oriented intelligence assets ever since Trump took office. Again, these are not opinions, they are facts. But rather than settle on that, the GOP seems to want to stay in parse mode and examine what is an “enemy” and consider the notion that Russia may not be one. I don’t think the founders could manage even a chuckle over that one. Or spending July 4th in Moscow.
What do you do when 35-40% of your population is traitorous? Under the guise of “patriotism”, of course…
Hard to argue over that…..
It’s worth pointing out that while the Colorado Supreme Court decision was a 4-3 vote, all 7 justices are Democrats (or at least, were appointed by Democrat Governors). The 3 voting against did so on procedural grounds. Their dissent lays all the ground work necessary for the Supreme Court to shoot down CO’s decision without needing to make a factual ruling on whether or not Trump’s actions constitute Insurrection.
I know this horse has been severely beaten but one other thought deserves reiteration. Maga maniacs think that if they put their front man from Oz back in office they’ll all be exempt from whatever idiocy the wizard manifests. They are wrong. There will be only a very small club of those who are to be protected. Look back at Hitler’s reign. Everyone who opposed him was made dead, thrown out of the “club,” or otherwise exposed to serious danger. Even all of Hitler’s generals were out at the end. The remainder of the club was very tiny and would fit in one bunker. They all died. Now look at Trump’s reign. He personally selected all his aides and Mitch got them approved (Mitch, of course, is now on the outside. No more soup for him). But every time an aide pushed back, he or she was gone, replaced. Either Trump had a bad HR vetting crew or he was just a stupid boss. Only one member of his cabinet/inner circle served the whole term, Mitch’s wife, now, of course reviled by Trump. There will be no safe house under the Chancellor, just as there was none under Hitler and there is none under Putin.
If you wish to get into the legal details on this 14th amendment issue, I recommend a podcast by Yale Law School prof Awhile Reed Amar called “Amarica’s Constitution”. It’s wonky, but they have all the leading experts on there.
sorry spellcheck screwed that up…..his name is Akhil Reed Amar
“The point is: I don’t much care either way. I’ll probably be fine for the rest of my days regardless, and I’m anyway more likely to die from an illness or an accident than I am to be executed by some death squad in a post-democratic America.”
To H and all readers,
At a minimum, it is entirely possible, (should the derelict obtain the presidency) that we’ll be stopped (all of us) by “the Trumpfen Sturmabteilung” at various points on roads, highways, country roads, stop signs, etc., demanding to see our papers. Of course, one may view that as only a minor convenience. And then again, as far as “the Trumpfen Sturmabteilung” are concerned, an excuse for them to disappear you, never be seen again.
Is trump anti-war? anti-neocons? anti-deepstate? I dont know the answer (but seems like he has been trying) if the answer is Yes, thats probably one of the reasons the powers are trying to disqualify him.
That, and allegations that he presided over a hopelessly clumsy, ultimately deadly, wholly illegal conspiracy to defraud the country.
“If I were disposed to promote Monarchy & overthrow State Governments, I would mount the hobby horse of popularity—I would cry out usurpation—danger to liberty &c. &c—I would endeavour to prostrate the National Government—raise a ferment—and then “ride in the Whirlwind and direct the Storm.” That there are men acting with Jefferson & Madison who have this in view I verily believe. I could lay my finger on some of them. That Madison does not mean it I also verily believe, and I rather believe the same of Jefferson; but I read him upon the whole thus—“A man of profound ambition & violent passions.”
Alexander Hamilton in a letter to Edward Carrington, 1792
As a gen Xer who has observed decades of logical fallacies becoming the norm. Now guiding the main stream thought process of the proceeding mob generation who horde positions of power and wealth.. I say, what is surprising or novel about any of these recent developments? It all fits perfectly into the backdrop; erosion of servant leadership and disingenuous thought processes. Selective presentation, cherry picking, false pretense, devil’s advocate/manipulation, misleading rhetoric, feigning ignorance, gaslighting and feigned empathy are now common practice in business, politics and family dynamics. Our society literally celebrates and reveres this stuff.
It will happen faster than you think especially with legal and financial endeavors. We are a money buys influence and court victories type of society. That will change to a regime loyalty buys influence and court victories style society.
Resistance will also be carried out in blood . Having loyalists doing their implied if not directed duty by by checking loyalty temperature is not going to sit right with many independents who also own weapons and 2nd amendment rights against government abuse.
We are a consumer and entrepreneur based financial system two thirds of us will be under threat, do you think people are going to be spending money and taking risks under those conditions? The type of rhetoric I hear does not sound like a soft autocracy. It will dispossess and it will and it will murder everywhere.
These dumbasses have never been to war yet here they are getting all excited about using physical force in defeating liberalism. Reality will knock their dicks in the dirt. The only victories will be for our foreign enemies Russia, China. Maga will not be able to deal with the buyers remorse of those who had invested in it, it wont matter. We will no longer be the greatest country in the world, for those tiny few at the top of maga who want it “mission accomplished”
Infrastructure annihilation, and famine
TB – Sadly, I’m in your camp.
The ostrich head-in-the sand approach reminds me of people asking why Jewish people in Germany did not just pick up and leave when Hitler took power. “What would happen was so obvious!”
Stock “investors” (as opposed to “players”) seem to be falling into that trap, ignoring both the domestic and geopolitical risks that are ready to wreak havoc on us all.
Hope we are wrong.