We Can't Afford Weak-Kneed Liberalism In The Trump Era
Sincere objections to disqualifying Trump from the ballot are reasoned backward from misplaced fear
The liberal case against disqualifying Donald Trump from the presidency under the 14th amendment seems to rest on a pretty big misunderstanding not just of what the Constitution mandates, or why it applies to Trump, but of what, specifically, is in the offing.
Boiled down, the argument is this: Donald Trump should be held to a special standard, not written into the Constitution, because applying the law to him faithfully is unfair to Republicans, and may allow them to engage in tit-for-tat retribution.
Both of these objections are easily refuted.
Consider Jonathan Chait’s most recent piece, restating his opposition to the disqualification effort, which he describes as a “gambit.”
Chait maintains his objection is political, not legal, but it is actually both—he’s making a case for the Supreme Court to invent new law to reach what he believes would be a politically expedient outcome.
The legal aspect of his reasoning centers on standards of evidence: The allegation that Trump “engaged in insurrection” is contestable, and since Trump contests it, the public will never fully accept his disqualification. The Supreme Court should thus reverse state-level decisions disqualifying him on what are ultimately due-process grounds.
Politics may be animating this argument, but it is an argument about the law and how it should be applied. The legal question of whether Trump’s conduct matches the meaning of “engaged in insurrection” is at the heart of all academic and judicial opinions supporting his removal from the ballot. Chait appears driven by fear of the consequences of applying the law to Trump, so he’s adopted the legal view that the 14th amendment shouldn’t be applied to Trump without the strictest possible scrutiny. That’s a legal mechanism—it just happens to be an atextual one.
THE FAFO DOCTRINE
The unfairness point is easiest to rebut. Chait argues Trump should be held to this invented standard under the law because, “the timing and political stakes of this case require incontestable certainty.” It’d be wrong to apply the law as written (no criminal conviction required!) because it’d be unfair to Republicans. “If the Court were contemplating a Trump disqualification a year or two ago, when the Republicans had more time to organize their alternatives, it might have allowed a more forgiving threshold of truth,” he argues.
The glaring weakness here is that Republicans are real adults, making decisions for themselves, with a mix of real and fake information, and the fact that their leader engaged in insurrection and might thus be disqualified from office was not hidden from them at any point. They called it an insurrection. They acknowledged Trump’s culpability. Then they decided to reanoint him as their leader. This strikes me as Their Problem, not Our Problem.
They’re the ones nominating a guy who broke the rules of qualification, and neither the judiciary nor the population at large is under any obligation to shield them from the consequences of their actions. This is quite literally why elections are subject to rules and laws, and why the justice system exists to enforce them. If members of one party are exempted from the rules because they laid all plans around being above the law, and now it’s too late for them to course correct, that party will try to win the election through lawless means in general.
Moreover, blocking enforcement of constitutional law on their behalf because we’re deep into the political calendar upends the idea that the wheels of justice turn slowly, but grind fine. Suddenly it becomes something much more perverse: Delay justice long enough and it might become too politically inconvenient.
Justice should come at the earliest possible moment, on the basis of the law as written and understood. If Trump’s challengers have established that he engaged in insurrection to a standard that meets constitutional requirements, he should be disqualified now. Chait’s prescription, by contrast, seems to imply that judges should order Trump onto the ballot and never look back. There is a non-zero chance that Trump will be convicted of conspiring to overturn the 2020 election before November. If that verdict lands in May, would Chait change his mind? The calendar would only be more forbidding for Republicans by then. What if, a week before the election, we learn that Trump’s lawyers advised him his conduct might disqualify him under the 14th amendment, and he chose to proceed with his coup attempt anyhow? If we reach the beyond-reasonable-doubt standard in October, will Chait have a change of heart? Or would we discover it’s too late for blind justice once again?
WITH FEAR AND FAVOR
The fear of tit-for-tat is similarly misplaced, though it at least points to a general concern worth taking seriously: When playing procedural or constitutional hardball, be sure not to create new norms that sunder the whole constitutional order. Fortunately that is not a major concern here. It’s more an indication that Republican mind games are having their intended effect of making liberals doubt themselves.