The Arguments For Placing Trump Above The Constitution Are Glib And Shrinking. By BRIAN BEUTLER

Of course he should be disqualified from the presidency

JAN 2, 2024

One of the only amusing things about the debate over disqualifying Donald Trump for the presidency is watching conservatives throw originalism overboard in favor of Whatever Interpretive Legal Method Might Salvage Trump’s Candidacy. 

Self-professed originalists claim to believe that the Constitution and the law should be interpreted as understood by their framers at the time of adoption. Conservatives typically extol originalism because limited interpretive methods make it easier for them to treat right-wing dogmas as binding on governments and citizens. The framers didn’t understand equal protection or due process to create civil equality for gay people, so the Constitution can’t be read to establish a right to same-sex marriage. Ta-da! 

Their difficulty now stems from the fact that the arguments for disqualifying Trump on 14th amendment grounds are originalist in nature. Trump supporters and anti-anti-Trump conservatives (and even some squeamish liberals) thus have two choices: mangle the construction of the 14th amendment in various ways, or retreat to a kind of living constitutionalism (disguised as “judicial restraint”) in which the 14th amendment doesn’t apply to Donald Trump because applying it to him feels somehow inapposite. 

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Nevertheless, if I’m being honest, in the realm of elite discourse, they seem to be winning the argument. Republicans are howling in bad faith about the sanctity of the democracy they tried to overthrow; Democrats are, as usual, hiding from the controversy, leaving their frontline members like Rep. Jared Golden (D-ME) to undermine the anti-Trump effort; and they sum to this kind of credulous news coverage in which Trump’s attempt to steal the 2020 election is relegated to the footnotes.

The political establishment’s unease with accountability for elites or with upsetting militant Trump supporters may give his allies may have a leg up in this spin war. But on the merits, and on their own terms, they’ve already lost.

ORIGINALIST SINS

For a time, conservatives embraced a tortured analysis in which section three of the 14th amendment doesn’t apply to Trump because—oops!—its framers omitted the presidency and vice presidency from the list of offices that insurrectionists can’t hold. 

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.

See? It doesn’t list the presidency per se! Ergo the framers meant for insurrectionists to be eligible candidates for high office. This glib originalism has fallen out of favor because only the most hardened MAGA loyalists are shameless enough to trot it out. The historical record makes clear that the framers of the 14th amendment understood section three to apply to the presidency, and sharper legal analysis makes their meaning plain. 

After we broke for the holiday, Maine’s secretary of state disqualified Trump from the ballot, observing in her carefully reasoned opinion, “the U.S. Constitution repeatedly refers to the presidency as an office…At first blush, it would seem odd to interpret the text of Section Three to incorporate the President through a catchall provision that follows the enumeration of Senators, Representatives, and presidential and vice-presidential electors. But none of those enumerated positions are ‘offices’ under the Constitution. The Constitution does not refer to Senators and Representatives as such…and electors are ‘no more officers or agents of the United States than are….the people of the States when acting as electors of representatives in congress.’” 

So much for that approach!

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Fairweather originalists have also conjured a due-process requirement that doesn’t appear in the text of the amendment, and insisted on a beyond-reasonable-doubt standard, though disqualification is not a criminal penalty. 

At every turn, the most consistent originalists in the legal firmament have sided with the Trump opposition, concluding that as a matter of law, Trump’s candidacy is invalid. That’s why sharper conservatives have simply thrown originalism out the window. 

FOR COUPM THE BELL TOLLS

What they offer up instead is cloaked in originalist camouflage—they are still appealing to right-wing Supreme Court justices, after all—but amounts to pure handwaving. 

“The term ‘insurrection,’ New York magazine’s Jonathan Chait wrote on Wednesday, is ‘a defensible shorthand for Jan. 6.’ But it’s not ‘the most precise’ term, because while ‘Trump attempted to secure an unelected second term in office,’ he ‘was not trying to seize and hold the Capitol nor declare a breakaway republic,’” wrote New York Times columnist Ross Douthat.

This concession prompted howls of online derision from his left-wing critics, but Chait is obviously, crashingly correct. There are arguments about precedent and implementation that tell against the case for Trump’s ineligibility and prudential arguments about the wisdom of suppressing populist fervor by judicial fiat. But the most important point is that there are many things a politician can do to subvert a democratic outcome, all of them impeachable and some of them potentially illegal, that are simply not equivalent to military rebellion, even if a bunch of protesters and rioters get involved.

Not military rebellion, ergo not insurrection. QED. 

Except…the scholars and judges who’ve considered the arguments for disqualification most deeply have grappled with the original meaning of “insurrection.” They’ve all concluded that Trump engaged in insurrection as understood at the time Congress ratified the 14th amendment.1 

Stripped of its originalist artifice, this least-worst Trump defense is pure vibe. The 14th amendment was adopted after a military rebellion and a civil war, so Trump’s conduct would’ve had to be similar to that for it to count as insurrection. Right?! 

Well, as a textual and historical matter that analysis is wrong. But it’s also wrong normatively: As a matter of pure abstraction, a failed coup is worse than failed secession.

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The actual secession of 1860 was irredeemable on its own terms. “The worst cause for which anyone ever fought,” as Ulysses Grant observed. But as a general matter, it’s easy to imagine principled bases for organizing breakaway rebellions, even ones that end in mass bloodshed. The American Revolution was a bloody breakaway rebellion that we celebrate every year with cookouts and fireworks. It’s much harder to imagine principled bases for trying to overturn an election you just lost, even if your self-coup fails after a relatively bloodless six hour riot.

The notion that Trump would’ve had to assemble something like the Army of Northern Virginia to disqualify himself from office doesn’t just misunderstand the Constitution. It reveals a lack of thinking about what Trump actually attempted, why it should be disqualifying as a matter of law, and what the world would’ve looked like if he’d succeeded.

Perhaps he would’ve clung to power in an America riven by something more like The Troubles than the U.S. Civil War. But the scale of violence Trump tempted is mostly beside the point. It would’ve been the end of constitutional government in the United States. A democratic system doesn’t cease to be democratic by enforcing its rules against violent subversion anymore than tolerant people are intolerant when they demonstrate no patience for bigots. Of course Trump should be excluded the ballot—this year, and in all future elections.

1

I find the 60-or-so pages of originalist inquiry in this paper by conservative scholars William Baude and Michael Stokes Paulsen very persuasive; in lieu of summarizing all of it, I’ll leave you with a link to the citation, and quote their concluding note: “The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.”