Colorado’s Supreme Court ruled that Donald Trump can be disqualified from the presidential ballot on the basis of the 14th Amendment to the Constitution, which bars people who engaged in insurrection against the United States. The ruling has the support of many well-respected lawyers.
I am not a lawyer, and I won’t comment on the legal merits of the case. I can assess its political and civic logic, which strikes me as dangerous and likely to backfire.
The argument for disqualification is quite simple. The Constitution bars officeholders who engaged in insurrection; on January 6, 2021, Trump engaged in insurrection; therefore, Trump is ineligible to hold office.
The weak point in this argument is the finding that Trump’s behavior constitutes “insurrection.” This is a defensible shorthand for January 6, one I’ve used frequently myself. But it’s not the most precise term. When I have the chance to use a longer description, I generally say that Trump attempted to secure an unelected second term in office.
Trump’s plan was to mobilize a mob to intimidate Congress into following his scheme to ignore the election results. His use of violent threats to secure power is obviously unforgivable, authoritarian, and very likely criminal. But there is at least some grounds to question whether it was an “insurrection” in the meaning intended by the 14th Amendment. Trump was not trying to seize and hold the Capitol nor declare a breakaway republic.
The timing of this decision is important context to its democratic legitimacy. If this ruling had come a year earlier, the Republican Party would have had time to organize a campaign built on the assumption Trump would be ineligible. But a month away from the first primary is late to change the rules of the game.
I am not arguing the timing rules out legal intervention. Trump is obviously facing several potentially adverse legal rulings. But most of those crimes are unambiguous, and the timing was determined by Trump himself, who deliberately set out to drag out the legal process as long as possible, specifically in order to force the rulings into the presidential campaign so that he could call it illegitimate.
What I’m arguing instead is that the timing of the court’s ruling makes it more imperative that its reasoning be unassailable. And the conclusion that Trump’s attempt to secure an unelected second term was “insurrection” isn’t solid enough to bear the weight of the outcome it supports.
To deny the voters the chance to elect the candidate of their choice is a Rubicon-crossing event for the judiciary. It would be seen forever by tens of millions of Americans as a negation of democracy. It is not enough that their belief is plausibly wrong or likely wrong. It must be incontrovertibly wrong to support such a momentous step.
I suspect the Supreme Court — which is more a political body than a legal body in major issues like this — will blanch at taking such a step, and I think that judgment would be correct.
