Disqualifying Trump? Yes, but reluctantly no

ERIC SONDERMANN Ews@ericsondermann.com Eric Sondermann is a Colorado-based independent political commentator. He writes regularly for Colorado Politics and The Gazette newspapers;t Ews@ericsondermann.com; follow him at @Ericsondermann.



The Gazette, Colorado Springs



“No person shall be a Senator or Representative in Congress, or elector of President and Vice-president, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” So reads Section 3 of the 14th Amendment to the U.S. Constitution. Ratified in the aftermath of the Civil War, this language is front and center today as more than just a demonstration of the gratuitous use of commas. With a focus on the words “insurrection or rebellion,” this provision was targeted at former leaders of the Confederacy. However, a century and a half plus five years later, the question is whether Donald Trump’s role in inciting and fomenting the events of Jan. 6th falls under such grounds for disqualification. A number of constitutional scholars have weighed in recently to the effect that is, indeed, the case. If you were inclined to dismiss those prized legal minds as simply coming from the ranks of left-leaning, Trump-hating law schools and institutions, you would be wrong. This growing body of legal opinion is truly bipartisan. The duo of conservative former federal appellate judge (and Supreme Court contender) Michael Luttig and liberal law school professor Laurence Tribe made the case in The Atlantic. “The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitutions, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup,” they argued. A number of Capitol police officers might argue the “bloodless” part. Two constitutional law professors long affiliated with the Trump-aligned Federalist Society reached the same conclusion. William Baude of the University of Chicago is pairing with Michael Stokes Paulsen of the University of St. Thomas on a lengthy law journal article for future publication. Baude wrote of their conclusion: “Donald Trump cannot be president – cannot run for president, cannot become president, cannot hold office – unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.” Mind you, that comes not from the intellectual heirs of Ruth Bader Ginsburg, but from those of Antonin Scalia. Our fair state of Colorado has now become central to this question. Roughly ten days ago, a half-dozen Coloradans of stature and integrity filed a lawsuit to preclude the Secretary of State from including Trump’s name on the ballot for either the 2024 primary or general elections. Those plaintiffs included four Republicans and two unaffiliated voters. Among them are highly respected types such as Norma Anderson, the Republican majority leader of the Colorado Senate in years past; conservative columnist Krista Kafer, who writes for some other nameless paper; and, Chris Castilian, years ago a senior staffer to the only Republican governor this state has seen in five decades. On cue, Trumpers will dismiss these principled sorts as RINOS, short for Republicans In Name Only. Were they alive today, the likes of Ronald Reagan, Barry Goldwater and even Abraham Lincoln would be on the receiving end of such contempt and ridicule. For my money, too many who currently carry the GOP banner are RITOS – Republicans in Trump Only. Flip two letters in RITO and you get RIOT. That shoe seems to fit. Colorado is not the only state with such litigation. Ultimately, the courts will have their say on the matter. This question looks to be ticketed for resolution by the U.S. Supreme Court, perhaps in an expedited, timely way given that the primaries and caucuses of 2024 are not that far off. Lacking a law degree much less black robes, far be it from me to hazard a guess on whether the courts will find the language of the 14th Amendment to be applicable. Though from my uneducated vantage point and in the assessment of a politically diverse group of legal masters, the meaning and implications of those words are rather clear. Which brings us to the corollary question of whether such potential disqualification is a good idea. On that one, with reluctance aplenty, I depart from the Colorado plaintiffs and others who are hanging their hat on this escape hatch. To be clear, while I have some sympathy for the alienation and discontent that bred Trump, and while a few of his presidential policies had merit, I have only disdain for the man himself. If only Mitch Mcconnell, certainly no Trump loyalist, had the fortitude to lead enough of his fellow Republican senators to convict Trump during the second impeachment trial, this issue would never have arisen and Trump’s days as a political candidate would have summarily ended. But as the indictments pile up and the criminal trials loom, Trump is as much martyr as he is candidate. In his own words to Conservative Political Action Conference last March, “I am your retribution.” By himself, Trump did not create this era of tribal division through which we are living, even as he continues to pour endless gasoline on the fire. The country faces twin imperatives. One is to keep Trump from ever again setting foot in the Oval Office. The equally vital second urgency is to reinvest many of those who found voice in Trump in the American experiment, no matter its many flaws. The latter is even more difficult than the former. Invoking the 14th Amendment, no matter the temptation, will only cement the disenfranchisement and terminal animus of Trump’s legions. Disqualifying Trump from the ballot may well be legally justified. That is not the same as saying it is advisable. Just because something is doable does not make it wise. The courts will decide both as to criminal charges and the applicability of this constitutional clause. However, if Trump — and Trumpism — are to be conclusively rejected, that in the end requires sustained political will. There is no workaround or substitute.