Trump's Critics Would Rather Have Courts Disqualify Him Than Let Voters Decide
Why do they have so little faith in the American people?
Editor’s note: This is a special bonus column this week.
In a historic ruling, with massive implications for the 2024 presidential election, the Colorado Supreme Court this week ruled 5-4 that Donald Trump engaged in an insurrection against the United States government on January 6, 2021 and cannot serve as president of the United States.
The court relied on its interpretation of the Constitution’s insurrection clause — and ordered the secretary of state to take his name off of the state’s GOP primary ballot.
The New York Times reports that, “The Colorado Supreme Court was the first in the nation to find that Section 3 of the 14th Amendment — which disqualifies people who engage in insurrection against the Constitution after taking an oath to support it — applies to Mr. Trump, an argument that his opponents have been making around the country.”
The Trump campaign responded to the decision, saying it was politically motivated. “Unsurprisingly, the all-Democrat appointed Colorado Supreme Court has ruled against President Trump, supporting a Soros-funded, left-wing group’s scheme to interfere in an election on behalf of Crooked Joe Biden by removing President Trump’s name from the ballot and eliminating the rights of Colorado voters to vote for the candidate of their choice,” a campaign spokesman, Steven Cheung, said. “We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these un-American lawsuits.”
According to one news report, “The lawsuit is viewed as a test case for a wider effort to disqualify Trump from state ballots under section 3 of the 14th Amendment, which was enacted after the U.S. Civil War to keep supporters of the confederacy from serving in the government.”
Even his GOP rivals for the nomination came out against the Colorado decision.
Ron DeSantis said that, “The Left invokes ‘democracy’ to justify its use of power, even if it means abusing judicial power to remove a candidate from the ballot based on spurious legal grounds.”
Vivek Ramaswamy said he is withdrawing from the Colorado primary until Trump’s name is restored on the ballot.
Nikki Haley told reporters in Iowa that, “We don’t need to have judges making these decisions, we need voters to make these decisions.” And at a town hall in New Hampshire Chris Christie said Trump shouldn’t be prevented from being president by any court rather, “he should be prevented from being President of the United States by the voters of this country.”
Yes, Donald Trump egged on a mob of his supporters. And yes, they rioted at the Capitol. And as far as I’m concerned, that’s proof enough that Donald Trump shouldn’t be president again.
But while the Constitution says nothing about having to actually be convicted, it’s worth noting that if it’s so clear cut that Trump engaged in an insurrection on January 6, why didn’t Special Counsel Jack Smith — who threw the kitchen sink at Donald Trump — not even charge him with that crime?
As I’ve said before, I would not vote for Donald Trump even if he ran unopposed. I think he was reckless in his speech that day and that the things he told his supporters — mostly his tiresome, often repeated claim that the election was stolen — is what touched off the riot.
But here’s something to consider: Why do so many of Trump’s critics (not all, of course, but many, especially those on the left), have so little faith in the American people? Why are they so afraid to let voters decide if he should be elected again?
If Donald Trump is as bad as his critics say he is then they won’t vote for him. And if they vote for him for whatever reason, well, that’s how democracy works.
His critics are constantly telling us that Donald Trump is a threat to democracy. But well-organized Trump critics are the ones filing lawsuits all over the country trying to insure that he’s not even allowed to run.
I’m no Constitutional scholar, but that sounds like a threat to democracy to me.
The U.S. Supreme Court likely will have the final say.
The Colorado court is out of its jurisdiction. It’s a Federal Statute. Artifacts: there’s been no legal charge of insurrection - only an emotional one; The political insurrection impeachment trial resulted in acquittal. Any such state, if given the power to interpret the Constitution, would affect all other states thus, it is illogical.
Moreover, in the weeds of the language in Article 14, it is not explicit about the President, but all other agents and officers of the federal government. This is to the effect and intent that one man, one office cannot force an insurrection unless there are enablers. There are none.
On many levels this ham fisted State decision will be overturned by SCOTUS. Pathetic that we spend calories on this nonsense.
"...if it’s so clear cut that Trump engaged in an insurrection on January 6, why didn’t Special Counsel Jack Smith — who threw the kitchen sink at Donald Trump — not even charge him with that crime?"
Although I haven't studied the insurrection statute and its history, I can make an educated guess. When in court, you're in a different world to a large degree. Especially in criminal cases, the rules of procedure and of evidence are tight. The burden of prof is not "a preponderance of the evidence" or "clear and convincing evidence" but proof beyond a reasonable doubt.
SC Smith may well have determined that he could not have presented enough admissible evidence to get by a jury. It's not evidence to say "Come on, don't be naive, of course it was an insurrection and of course there wouldn't have been that insurrection but for his words and manner" or the like. It's not uncommon to know something is true, but to be unable to prove it in court.
That's why so many guilty persons are acquitted or even not charged and even why innocent people are sometimes convicted. The legal process is considered sacrosanct. While this process does have avenues to correct cases of individual injustice, they are subordinate to the system.
But as citizens, we are not restricted like a jury. Apparently, the drafters of Section 3, 14th A. of the COTUS didn't want to condition the section on a legal process
"Why do so many of Trump’s critics (not all, of course, but many, especially those on the left), have so little faith in the American people? Why are they so afraid to let voters decide if he should be elected again?"
Why did the drafters of the 14th A., section 3, to the COTUS have so little faith in the voters, even if they intended it to only bar Confederates from running? And if they were solely concerned about former Confederates running for office, why did they leave the language so broad? Of course, a true textualist would say this latter question is not relevant. They would say that we must look at the meaning of the text, not intent, when the language is clear.
In addition, why did the drafters of the original COTUS have so little faith in the voters that they put the provision regarding electors chosen by state legislatures to chose the POTUS? Granted, the states have each devised democratic systems - winner take all in 48 states and a more proportional system in the other two - but nothing in the COTUS requires this.
Of course the drafters of the COTUS had varying thoughts about a popular vote. Most did not trust the voters enough to have elections subject to direct popular vote. The COTUS basically establishes a political system that maximizes drawing on the wisdom of the voters while minimizing reliance on the passions of the voters.
You're suggesting that we disregard section 3 of the COTUS, at least regarding Trump. Although raising the 14th A. now complicates an already complicated election, I think the SCOTUS MUST address this head-on with regards to Trump. Section 3 is clear that offenders SHALL be barred from holding certain offices. Regardless of the motives of those raising this matter, we CANNOT afford to turn our backs on the COTUS.
Possibly the first question the SCOTUS must address is whether this a political question, i.e. is this matter so political that it's inappropriate for a court to address it? The SCOTUS could simply kick the entire issue to Congress, but I hope not. Section 3's language is so open-ended that it needs to have some process attached to it - e.g. specifically, what positions does the section 3 include if not the POTUS?, what is the definition of an insurrection?, specially, what does "...shall have engaged in insurrection or rebellion against" mean, does it bar offenders from running in state primaries, does it bar offenders from running in the general elections. Once the SCOTUS has ruled on these sub-issues, they can kick it to Congress or make an ultimate ruling themselves.
If Congress has the ultimate responsibility of enforcing section 3, they must develop more process. Is the ultimate vote a majority vote? 2/3? 3/4? Is there a trial before both houses of Congress? Who presides over the trial? What is the burden of proof? What are the rules of procedure and of evidence? Etc.
Yes, it's a constitutional and political mess. But once raised, it must be addressed regardless of why it was raised. It would be a terrible precedent to ignore section 3 claims because we disagree with it or because it's so difficult.
If the SCOTUS makes an ultimate ruling on Section 3, they should address who has standing to raise such a claim. state legislators? state AGs? sectaries of state? the US AG? Congressmen? Some combination?
In addition, is there the equivalent of a "statute of limitation"? Must the party bringing the claim take an oath that his claim is well-grounded on fact?