Take a deep breath!
December 21, 2023
Opening comment.
After Colorado ruled that Trump could not appear on the state’s presidential ballot, a curious thing happened. People who wished for years that Trump would be held accountable for his crimes suddenly expressed second thoughts, deep reservations, and fear for the future of democracy if the plain words of the Constitution were applied to Donald Trump. Otherwise sober scholars predicted “another Civil War” if the Supreme Court upholds the Colorado decision.
Let’s all take a deep breath. Yes, we are in uncharted territory, but we have the Constitution, legal precedent, and the rule of law to guide us. We live in the world’s largest democracy, which is fueled by the world’s largest economy—twin pillars that create enormous momentum and heft in favor of institutional stability.
We must overcome our irrational fears by grounding our analysis on the terra firma of the Constitution and the history of a nation that has—for more than two centuries—survived civil war, insurrection, depression, financial panic, plague, bigotry, demagoguery, and political corruption. We will make it through this crisis, too—assuming (but not conceding), that applying the Constitution to Trump qualifies as a crisis.
Below, I review the reservations expressed by many commentators and readers of this newsletter. I also examine some of the legal arguments that may decide the issue of Trump's disqualification from holding office under Section 3 of the 14th Amendment.
The most important point. It is imperative to say the most important thing first: Whatever else happens—and regardless of the result—we must apply the Constitution and the rule of law to Donald Trump in the same way it would be applied to any other citizen. If we fail to do that, we will inflict grievous injury on the Constitution and invite further assaults until “all the laws have been cut down.” If that were to happen, “Do we really think we could stand upright in the winds that would blow then?” (Paraphrasing Sir Thomas More in A Man for All Seasons by Robert Bolt.)
Every hesitation, reservation, and exhortation to “make an exception” because of potential violence or political chaos is an invitation to abandon the Constitution. We do so at our grave peril and possibly for the first, last, and only time—because if we set our great charter aside once, there is no logical stopping point for setting it aside again when it serves the pleasure of a president who views the Constitution as an obstacle rather than a safeguard.
Addressing the arguments for ignoring Section 3 of the 14th Amendment.
What happened. On Wednesday, voices were raised from many quarters arguing that applying Section 3’s disqualification bar to Donald Trump is a bad idea that should be rejected on practical and political grounds. For example,
RFK Jr. claimed that barring Trump from the ballot would make the nation “ungovernable.”
Lawrence Lessig asserted that barring Trump would result in “a second Civil War.”
The Texas Secretary of State threatened to bar Joe Biden from the Texas ballot if Trump is barred from Colorado’s ballot.
Chris Christie said that “the people should decide” who will be president.
Why it matters. Each of the above arguments, in its own way, suggests that an “exception” should be made to the Constitution because Donald Trump has threatened violence if he does not get what he wants. Those arguments are born of fear and have no place in considering the application of Section 3. If the threat of violence is all it takes to suspend the Constitution, we are lost.
The threat by the Texas Secretary of State falls into its own unique category of MAGA bad faith. It asserts, “If you apply the Constitution as written, we will violate the Constitution by unlawfully barring Joe Biden from the ballot in Texas.” We have heard that argument before in various manifestations—“Democrats shouldn’t take X [lawful action] because Republicans will retaliate.” (See, e.g., impeachment.) If threats of unlawful retaliation are all that it takes to suspend the Constitution, we are lost.
The constitutional bar must be applied to Trump precisely because he resorted to violence in 2020 to overturn the Constitution—and threatens to do so in 2024. Arguing that political or practical realities—including violence—justify suspending the Constitution by giving Trump a “free pass” for insurrection is wrong.
Would it be better to defeat Trump at the ballot box? Define “better.” Who among us believes that Trump's base will accept the legitimacy of a defeat at the ballot box in 2024 any more than they accept the legitimacy of his loss in the 2020 election? Arguing that we should “let the people decide” because Trump's base won’t accept the legitimacy of a Supreme Court decision barring him from the ballot also amounts to an abandonment of the Constitution. The Constitution deserves better from us.
And let’s be clear: No one is making the argument that Democrats will refuse to accept the legitimacy of the 2024 election if Trump is not barred and defeats Joe Biden. When arguments consist of “The only legitimate election is one in which we win”—the premise of the “let the people decide” argument—we should not treat those arguments seriously. We should, instead, apply the Constitution as written.
A brief review of some of the legal issues raised by the Colorado decision.
What happened. We experienced a blizzard of legal commentary on Wednesday. There were many superb articles, but I will discuss three because they cover a range of reactions and provide some hints at how the Supreme Court will decide the case. Let’s take a look at three articles.
First article: “Calling the originalists’ bluff.”
The reactionary majority on the Supreme Court frequently resorts to “originalist” or “textualist” approaches to the applying the Constitution. Those approaches—although conceptually different—often result in a stilted, mechanistic application of the language of the Constitution as the words were understood when the Constitution and amendments were enacted. (“In theory, originalism is committed to interpreting the Constitution according to its original meaning as it was understood at the time of adoption.”)
Adam Sewer addresses the originalist philosophy of the reactionary majority through the lens of the Colorado ruling barring Trump from the Colorado ballot. See Adam Sewer, The Atlantic, The Colorado Ruling Calls the Originalists' Bluff (Accessible to all).
Sewer argues that the plain meaning of the text of the Constitution bars Trump from holding federal office because
“The evidence that Trump engaged in the sort of conduct the Fourteenth Amendment was designed to address is overwhelming.” [¶]
“Originalists are not supposed to rule based on the impact of their decisions, a tendency they derisively refer to as “results-oriented judging.” Instead, they are merely supposed to ensure that the law is implemented to the letter, as it was intended to be.”
The text of Section 3 is plain, and a court found that Trump engaged in insurrection (after an evidentiary hearing). If the reactionary majority is true to their judicial philosophy, they will uphold the ruling of the Colorado Supreme Court in short order.
Second article: The argument that Trump is not “an officer” of the United States.
Those who seek to block the application of Section 3 to Donald Trump argue that Trump is not an “officer” of the United States. By its terms, Section 3 applies to anyone who has taken an oath “as an officer of the United States.” The Constitution repeatedly refers to the President as holding “office” and taking “an oath of office.” That should be the end of inquiry because Section 3 is plain on its face; there is no ambiguity.
But Trump supporters argue that an earlier draft of Section 3 explicitly referred to “the President” and that the later omission signals a clear intent to exempt the president from Section 3’s disqualification provision. The problem with that argument is that it is not based on the text of the Constitution but on something omitted that appeared in an earlier draft.
Lawrence Lessig argues that the omission of the term “the President” from Section 3 as enacted is clear evidence of the Drafters’ intent that the term “officer” in Section 3 does not include the President of the United States. See Lawrence Lessig in Slate, The Supreme Court must strike down Trump’s ballot removal.
Lessig writes:
“The puzzle in Section 3 is that it seems as if the framers of that text were just sloppy in their enumeration. The clause bars insurgents from being “a Senator or Representative in Congress, or elector of President and Vice President, or [to] hold any office, civil or military, under the United States, or under any State.” The obvious question is why they would enumerate “Senator or Representative” — not to mention “elector of President” — but not the president.”
“Defenders of the Section 3 argument suggest this was a mere drafting error but that the clause applies to the president nonetheless, since the president occupies an “office … under the United States.” And in any case, these lawyers argue, it would be “absurd” to read the clause to apply to every elected official, including electors for president, but not the president.”
I believe Lessig is wrong—because he would ignore the plain text of the Constitution and instead rely on something not included in the Constitution to change the meaning of its unambiguous words. Moreover, if the Supreme Court were to examine the reason the Drafters excluded the term “the President,” the Court would find that the Drafters omitted the term “the President” because they believed it was encompassed in the term, “officer.”
Third article: Even the dissenters in the Colorado ruling agree that Trump engaged in insurrection and is an officer of the United States.
George Conway III wrote an article for The Atlantic entitled Don't Read the Colorado Ruling. Read the Dissents. Conway convincingly demonstrates that although the Colorado ruling was split 4-3, even the dissenters agreed with the majority’s key rulings that Trump engaged in insurrection and is an officer of the United States.
Conway writes,
“The dissents were gobsmacking—for their weakness. They did not want for legal craftsmanship, but they did lack any semblance of a convincing argument.”
“For starters, none of the dissents challenged the district court’s factual finding that Trump had engaged in an insurrection. None of the dissents seriously questioned that, under Section 3 of the Fourteenth Amendment, Trump is barred from office if he did so. Nor could they. The constitutional language is plain.” [¶]
“And the dissenters didn’t even bother with the district court’s bizarre position that even though Trump is an insurrectionist, Section 3 doesn’t apply to him because the person holding what the Constitution itself calls the “Office of the President” is, somehow, not an “officer of the United States.”
As Conway notes, the dissents relied on a provision of state law they claim stripped the Colorado court of authority to decide the question of Trump's eligibility. The three dissenters lost on that point and—this is important—the US Supreme Court will not review a state court’s interpretation of state law. So, the dissents offer no hope for Trump on appeal to the US Supreme Court.
Two more points worth considering.
First point: The distinction between “appearing on the ballot” and “disqualification from holding federal office.”
Section 3 imposes disqualification from holding federal office. It says nothing about appearing on a state ballot for president—a decision firmly committed to state legislatures and courts.
The ruling in Colorado was that Trump cannot appear on the state ballot. A different state might conclude that Trump can appear on its ballot. Thus, there could be a patchwork of state rulings about appearing on a presidential ballot in elections run by states. That might seem like it invites chaos, but it does not.
If the US Supreme Court affirms the ruling that Trump engaged in insurrection and is an officer of the United States, he is barred from holding federal office—without regard to his appearance on state ballots, any “victories” he may win in those states, or any “electoral votes” he may secure.
The disqualification from federal office is absolute; it supersedes other provisions of the Constitution, and it can be enforced by an injunction prohibiting Trump from being sworn in as president.
Could that situation result in a constitutional stand-off? Sure! But if the Supreme Court rules that Trump is disqualified, it will also issue ancillary relief to prevent him from assuming office. At that point, the executive branch, the judicial branch, and the military will follow the ruling of the US Supreme Court.
Second point: Democrats are not responsible for the complicated judicial and political questions that have emerged from Trump's decision to run for president after attempting a coup.
Josh Marshall wrote the following in Talking Points Memo:
“Whatever complaints Trump or anyone else might have about this, it’s the logical and inevitable result of trying to overthrow the United States government. Don’t want the hassle? Don’t try to overthrow the state. In other words, he brought it on himself. His problem, not ours.”
I would add to Marshall’s list that we are in this pickle because Republicans refused to convict Trump in the Senate on two occasions despite his manifest guilt. Republicans have been hanging back and badmouthing Trump behind his back while hoping Democrats will finally end Trump's political aspirations. Now that Democrats are on the cusp of doing so, any protestations by Republicans are theatrical—as in “theater of the absurd.”
Concluding Thoughts.
There is oh-so-much more to discuss, but I felt it was important to address the disqualification in detail so we have a foundation to process future developments.
How will this situation resolve itself? In a just world, the Supreme Court would affirm Colorado’s ruling and declare that Trump is disqualified from holding federal office. But there are multiple “offramps” that might allow the Court to uphold the gist of Colorado’s ruling (and the plain language of the Constitution) while still allowing Trump to remain eligible to hold federal office.
For example, the Court might rule that the trial proceeding in Colorado did not provide sufficient due process to Trump. I disagree, but several commentators have suggested that conclusion as a face-saving device for the Court to duck the hard question without inflicting (additional) major damage to its legitimacy.
Because the legal issue is out of our hands, the best advice (from readers in yesterday’s Comments section) is to stay the course, get out the vote, and plan to beat Trump at the ballot box by a landslide in 2024. The antidote to anxiety is action. Rarely has that advice been more apt. We can beat Trump. We have done so before; we can beat him again!
Talk to you tomorrow!
Apologies to Adam Serwer, whose name I misspelled in the newsletter!
Very helpful. Personally, as a 27-year resident of Colorado who has seen the state move from red to swing to blue, I couldn't be more proud of this moment in our state history, whatever the ultimate outcome at SCOTUS. My view is that Trump has been perpetuating an ongoing insurrection beginning as far as a year before the 2020 election when he began priming his base to reject any election in which he did not win and continuing through the years of the Big Lie with which he has swallowed his party whole, intimidating anyone who thinks about standing on principle with the threat of being primaried and holding up the example of even someone with the last name of Cheney to prove he can and will do it, only to position himself to complete what he did not finish on January 6. And as far as the arguments that many, both lawyers and non-lawyers, have made that the people should choose who is on the ballot, this very much is a constitutional test. And to the argument that the 14th is a Civil War-era amendment that cannot be meant for this era, I wonder why these same people then stand on the Revolutionary War-era 2nd amendment and insist on its inviolability, while having welcomed a modern interpretation because it suits them. We do not, in fact, just go around scratching out parts of the document according to individual political preference. And to Mike Johnson, whose comment was that the Colorado decision was "thinly veiled partisan attack," I remind him that the individuals who brought the original case in Colorado were Republicans and independents. He could learn a thing or two from their patriotism and principles.