So we are three years removed from Trump's attempt to overthrow democracy in America and at the beginning of his campaign to overthrow it next year. There are a number of op-eds in the Times today about efforts to disqualify Trump on account of his being an insurrectionist.
I'd start with Jamelle Bouie (always insightful, if a bit prolix) and his definitional account of why Trump is an insurrectionist. Even those Colorado judges who ruled he could be on the ballot felt that he had committed insurrection. We have no idea what the SCOTUS might rule, but most likely they will try and escape out a loophole that allows Trump to be on the ballot but does not rule whether he committed insurrection. Their biggest escape hatch is to allow each state to make that determination, which would mean Trump would be banned from a few Blue states that he wasn't going to win anyway. The central question of "Did Trump commit insurrection?" seems self-evident.
Samuel French (a Never-Trumper) reaches the same conclusion but addresses the arguments that "Well, if we ban Trump, his supporters would be outraged and might commit violence." If the threat of Trumpist violence dissuades the Court from reaching the logical conclusion that the XIVth Amendment bans Trump from running again, then we are already under the threat of more insurrection. The argument that kicking Trump off the ballot might lead to violence is a sobering but not compelling argument. If one side requires violence to get their way, we are no longer a republic...which is precisely the threat Trump posed yesterday and poses today and tomorrow.
There's a guest writer who again reaches the obvious conclusion that Trump participated in insurrection, but notes that Congress and Congress alone has the power to waive that prohibition. This is clever. In the author's opinion, Trump could and perhaps should be banned from holding office on account of his behavior surrounding 1/6. However, the text says that only Congress has the power to remove this penalty, and it requires 2/3rds to do so. First, of course, it would require Republicans to admit that Trump engaged in insurrection, which they might not be willing to do. Second, it would require Democrats to allow an open insurrectionist and would be dictator on the ballot. That seems a stretch, since Democrats will be actively running on the threat Trump poses to democratic rule.
Finally, we have perhaps the single most important figure in this debate: John Roberts. I was surprised when Roberts went along with the Dobbs decision, because he has seemed interested in protecting the Court's overall legitimacy. Dobbs has certainly shaken that legitimacy and the upcoming cases surrounding access to reproductive care will also let us know if the Court is basically going to act like Alito or Roberts.
Kicking Trump off the ballot entirely seems like a bridge too far, and I'm sure Roberts would like to craft a 9-0 or 7-2 decision. Basically ruling that each state can determine its election laws and allowing each state to determine if Trump is banned might satisfy that. As Josh Marshall notes, that would likely mean Trump is booted off the ballot in a few Blue states that he wasn't going to win anyway. From an Electoral College standpoint, Trump was never going to win in Massachusetts, Colorado or Vermont, so if they oust him from the ballot it won't materially impact that election. It might even give Trump a rallying cry among his cultists about "fraud".
One way or the other, it feels like the single most important issue right now is getting Jack Smith's case to trial this spring.
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