On Thursday, the U.S. Supreme Court is scheduled to hear arguments in a Colorado case about whether former President Trump’s deep involvement in the deadly events of Jan. 6, 2021, should disqualify him from running again.
Sadly, I think it’s a good bet that the court’s conservative majority will side with Trump and allow his name on the ballot. It’s the least fraught way out for the court, mired in scandals of its own making and undoubtedly loath to throw more fuel on the raging election-year American partisan political fire.
I’ve had mixed feelings about this case since the Colorado Supreme Court ruled in December that allowing Trump on its state ballot would violate Section 3 of the 14th Amendment, which, boiled down, forbids anyone who has engaged in or supported insurrection against the American government to hold office.
Plenty of Trump’s legal allies have argued that Section 3 does not apply to him, claiming, for instance, that the president is not an “officer” of the United States, or that Section 3 only prohibits a candidate from holding office, not seeking it. But as the motley group of Colorado voters who brought the case against Trump put it, you have to engage in “pedantic wordplay” to not apply Section 3 to Trump.
The former president, driven by narcissism and power, has shown himself to have little regard for the rule of law, the Constitution or the American people. And yet, part of me thinks that allowing him to stay on the ballot would be the healthiest solution for the country.
Trump ought to get whomped by President Biden in November and then slink away. On the other hand, he already was whomped in 2020, and by shamelessly lying to his supporters, he has turned his loss into a cause celebre and a continuing national nightmare.
Not to mention an ongoing civics lesson for most of us, who can be forgiven for not knowing until now what Section 3 of the 14th Amendment even says.
“Let’s face it,” the Yale historian David Blight told NPR last week. “Section 3 had all but vanished from history, and it’s suddenly risen from the dead.”
Blight, along with Civil War historians Jill Lepore, Drew Gilpin Faust and John Fabian Witt filed a friend-of-the-court brief in the Colorado case arguing that Section 3 applies to Trump and disqualifies him from running for office ever again.
“There is no one who relishes the idea of Section 3 being applied in this case,” Lepore told NPR. “There is no glee to be had, there is no triumph in striking Trump from the ballot. But this is what the Constitution says. And this is a court that has pledged to abide by the original intention, meaning and public understanding of the Constitution.”
The 14th Amendment, which was introduced in 1866 to address the widespread and often violent discrimination against formerly enslaved Americans, promises all citizens equal protection under the law.
At the time, as the historians write in their brief, the deep national wounds wrought by the Civil War were still raw. Americans on the winning side were not in the mood to fully forgive and forget, and the idea that some secessionists could be elected to Congress after betraying the union was unsettling, if not abhorrent.
Could a traitor such as Jefferson Davis, the first and only president of the Confederate States of America and a former member of the Senate and the House from Mississippi, run for office?
There was, Lepore told NPR, “an incredible terror of Jefferson Davis in particular, that he would make a bid for the presidency.”
Section 3, the “disqualification clause,” was designed to prevent that from happening. Over time, as Blight noted, the section became something of a historical relic. And then the unthinkable happened.
An American president who lost his reelection campaign tried to overturn the results of a fair election and remain in power against the will of the people, resulting in state and federal criminal indictments.
In Georgia, Trump has been charged with 13 felony counts of unlawfully conspiring to change the election outcome while participating in a “criminal enterprise.” Federal prosecutors have charged him with conspiring to defraud the government and disenfranchise voters and obstructing an official proceeding over his role in the Jan. 6 insurrection.
All along, Trump has claimed that a president can do whatever he wants and get away with it.
Not so, a federal appeals court unanimously ruled Tuesday. “Any executive immunity that may have protected him while he served as president no longer protects him against this prosecution,” wrote the court regarding the federal case against Trump, who has said he will appeal to the Supreme Court.
The high court, whose ultraconservative majority has repeatedly proclaimed its embrace of originalism, will have to decide both the Colorado ballot question and the limits — or not — of presidential immunity. Will the justices choose Trump, or the rule of law?
