We Can't Afford Weak-Kneed Liberalism In The Trump Era. By Brian Beutler

Sincere objections to disqualifying Trump from the ballot are reasoned backward from misplaced fear

(Photo by Leander Baerenz)

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 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.

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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?

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. 

I respectfully think Chait is reasoning backward from here: “[T]he history of democratic backsliding… shows errors in all directions. One error is complacency or surrender. But another kind of error is to set off an escalatory cycle.”

When you evaluate a method of fighting authoritarianism, one question should be its effect on potential allies in the opposing camp. The question isn’t what Trump and his mouth breathers will say. It is what persuadable Republicans and centrists will say. And while Republican willpower to resist Trump has dwindled, it has not disappeared entirely. At key moments, figures like Mike Pence, Mitt Romney, Jeff Flake, Liz Cheney, and others have taken real risks to defy Trump. They have done so out of the belief that they are preserving the rules of the road of the American system.

Upending those rules by throwing the Republican candidate off the ballot in the middle of the primaries would strike many of those Republicans as escalatory and anti-democratic. That is a risk that must be weighed when weighing a radical move, even one that is legally justifiable.

If this is what’s motivating him to build a case for leniency, I have good news.

For one thing, if Trump is to be disqualified from office, it won’t be by his supposed enemies alone. It will require at least one Trump-appointed Supreme Court justice to join a majority opinion.1

This would have at least some validating effect on the decision. I think it would be highly validating among the anti-Trump Republicans whose views Chait claims to value. Liz Cheney, for one, supports disqualifying Trump already. Mike Pence apparently does not, but would he join the hordes demanding revenge if the decision ruling Trump ineligible for office were written or cosigned by Brett Kavanaugh? 

Speaking of validation, Chait cites the scholars Steven Levitsky and Daniel Ziblatt to lend heft to his view that disqualifying Trump might send us further down the slope toward authoritarianism. They also have certain misgivings about disqualifying Trump, and they wrote a very important book called How Democracies Die. I would lend a great deal of weight to their concerns if they argued the Supreme Court should not disqualify Trump under any circumstances. But the article about their concerns, which Chait cited, reports, “Both professors blanched at the idea of partisan secretaries of state taking Trump off the ballot on their own. Levitsky called this ‘deeply problematic,’ and Ziblatt said it would be ‘very fraught and dangerous’ and likely to lead to ‘escalation.’” Emphasis mine. 

I would be in Chait’s camp if the proposition was that partisan secretaries of state should be the final word on the question of qualification. But that is not the case. The Supreme Court is empowered to review their decisions. And the Supreme Court happens to be tilted in Trump’s partisan favor. To clear up the confusion, I asked both professors, “whether [their] misgivings extend to letting the Supreme Court be the ultimate say.” Their responses offer Chait an opportunity to stop and reconsider. 

Refer a friend

You “raise a good point,” Ziblatt wrote to me. “If the Supreme Court were to uphold Colorado’s decision with an explicit definition of insurrection, conditions when it applies etc., in a very, very detailed way this might be a path that could foreclose to some degree the escalatory cycle of the secretary of state of, say, Missouri deciding to remove Biden (or any other Democrat) from the ballot (something he has already raised) on arbitrary grounds.” 

A concern [arises], however, if the Court were to uphold the decision and just say “it is up to each secretary of state” to make the decision (“we want to keep our hands clean”)—this keeps the door wide open for the escalatory outcome because there would be no standard, no?  So the content/justification of the decision may matter a lot.

Similarly, if the Court were to not uphold the Colorado decision and send it back to the legislative branch (for example, by saying each state legislature has to define insurrection etc.), this too could unleash a torrent of constitutional hardball, as states arbitrarily remove candidates from ballots as state legislatures might pass laws targeted to specific candidates. Alternatively, a decision not to uphold the Colorado decision though specifying that the U.S. Congress needs to define insurrection is another possible outcome, probably better than letting each state decide.

Levitsky largely agreed. “I agree with Daniel’s basic point that it would depend on the nature of the SCOTUS ruling,” he wrote to me. “It is true that a ruling by a conservative Supreme Court (hopefully by a large majority) in favor of Colorado would provide greater legitimacy to the process, but still, candidate exclusion [is] a very high stakes process—one that requires clear, widely known and agreed upon rules. Yes, we have Article 3 on the books, but Article 3 has long been a dormant institution. It is legitimate to activate it, and I think a good case can be made that it does in fact apply to Trump. But this a really powerful instrument; its activation comes with a high risk of politicization and abuse.”

Levitsky added (with my emphasis): 

Article 3 is [a] prime candidate for constitutional hardball—the weaponization of formal rules for use against political rivals. I think it would be a terrible idea to just declare Article 3 “self-executing” and allow state officials to then call it like they see it in the future. If a SCOTUS ruling (or subsequent legislation) established clear guidelines and procedures for evaluating cases, then it could be [a] positive thing. But it seems to me that we are far from that.”

So I am not among who thinks it is inherently undemocratic to exclude Trump, and that the voters should always decide, no matter what.  I think Trump poses a real threat to democracy and I wish we had legitimate procedures in place to remove him. I am also not opposed to this on the more practical grounds that it would radicalize Trump supporters and trigger a civil war (unlikely, and the law is the law).  But I worry that progressives are letting their desire to remove Trump turn them into strict originalists, and I am not comfortable with that.

To clarify, my view is that the Supreme Court should uphold the Colorado decision entirely, which would both establish as a matter of law that Trump’s conduct met the legal definition of insurrection, and that it’s appropriate for state officials and courts to use discretion, after some good-faith inquiry, in initially determining what conduct amounts to “insurrection”—but subject to judicial review. I do not believe the Supreme Court should make a hash out of this with a lazy or evasive ruling. But the tiny risk that five justices agree on an opinion that wrecks the electoral system does not strike me as a good reason to leave the rules unenforced. 

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That’s why I’m also unconcerned about the risk of escalation. Republicans are already promising tit-for-tat. In fact, promising tit-for-tat is a cornerstone of Republican politics in the Trump era. Abdicating core principles out of fear of Republican tit-for-tat would leave us in bad shape. They are currently engaged in a baseless, tit-for-tat impeachment of Joe Biden because Democrats impeached Donald Trump—were Trump’s impeachments, thus, mistaken? They are promising tit-for-tat prosecution of Joe Biden if Trump wins the election. Should Jack Smith thus drop his cases? Should Biden pardon Trump out of fear? And of course, they’re threatening tit-for-tat disqualification of Biden in states like Florida, Texas, and Missouri on the basis of Great Replacement-style anti-immigrant racism. 

But those disqualifications would also have to run through the Supreme Court and down as I am about our five worst justices, I don’t believe they’d uniformly vouchsafe the argument that Biden “engaged in insurrection” by not deporting enough immigrants (on the fabricated theory that he let them stay so they and their children can one day vote for Democrats). I also don’t believe Joe Biden will be convicted of any crimes in a second Trump term, and I don’t believe Democrats were wrong to impeach Trump just because Republicans are now exacting their revenge. 

Liberals need to be uncompromising in this moment not because such fastidiousness is always right, but because it’s necessary in the face of corrosive threats to jettison facts and turn all of politics and law into a contest of will to abuse power. If we have faith that Republican escalatory efforts will fail because they’re based on nothing, we should proceed righteously with Trump’s disqualification, because it’s rooted in truth.

Footnote about Jonathan Chait:

With all I’ve written about Donald Trump’s disqualification under the 14th amendment, I should disclose an important but pretty obvious bias: I think it’s extremely important to prevent Donald Trump from winning or seizing power; I think many Americans of non-MAGA political persuasions underrate the risk that he will become president again; and I thus have an Any Port In The Storm philosophy about various efforts to end his political career. 

Support long-shot efforts to beat him in the primary? Yes. Try, convict, and imprison him? Also yes! Disqualify him with a five-four Supreme Court decision aligning Elena Kagan, Sonia Sotomayor, Ketanji Brown Jackson, John Roberts and a single Trump-appointed justice? Most definitely. 

I have few doubts that, looking back from the aftermath of a decision like that, we’d be in a better place and feel relieved to have Trump neutralized. By contrast there are many ways I could imagine Trump surviving this attempt to enforce the 14th amendment, only to win the general election, at which point we’d look back ruefully on yet another road-not-taken to save the country from him.

Because of this bias, I’m mindful of the fact that I’m motivated to reason my way to the conclusion that the 14th amendment applies squarely to Trump, and thus that (whatever the justices do) the law requires his candidacy to be expunged. 

And because of that risk of motivated reasoning, I’ve taken a lot of care to absorb all the legal arguments for and against disqualifying Trump, and feel pretty gratified that the arguments on my side are heftier. 

But this works the other way around, too. People with different philosophical attitudes about the importance of stopping Trump who believe he needs to be defeated politically and only politically or who fear backlash for stopping him on legal or constitutional grounds, will be motivated to reason that the 14th amendment doesn’t apply to Trump or that he should be exempted from its requirements.

I think that’s what happened with Chait.