I do not envy the many judges, juries, and prosecutors around the country now tasked with addressing Trump's various misdeeds. For the real tragedy of Trump's bad behavior—his repeated efforts to destabilize American democracy—is that there is practically no way to address it that is not itself destabilizing to our political institutions. Give him an amnesty, for the sake of peace, and you have established a precedent of impunity for attempts to overturn a democratic election. Prosecute him to the fullest extent of the law, and you set the stage for a never-ending tit-for-tat that brings our political process to a new low of partisan viciousness.
The decision last night from the Colorado Supreme Court is a case in point. I honestly don't know how the judges should have ruled; I only know that they had no good options. Ultimately, a majority of the panel concluded that Trump was in fact barred from seeking office again, under the 14th Amendment's prohibition on the reelection of people complicit in an insurrection. The three dissenting judges, however, raised a good point—Trump has not actually been convicted of abetting an insurrection. He was acquitted in the Senate (however ludicrous and partisan most of us found that vote), and the current prosecution of him for defrauding the people of the United States has not yet secured a conviction.
The dissents thus raised a valid question of whether Trump has yet received the procedural due process owed to someone before they can be deprived of a legal right. One could argue that the fact-finding at the district court in the Colorado litigation was the due process he is owed. Also, one can ask whether the framers of the 14th Amendment intended the clause at issue to apply only to people who had already faced criminal penalties for their role in the Confederacy, or whether it instead applied to people who were simply known to have held positions in that pseudo-government and its army. These are questions for legal scholars with some knowledge of the area; I have little to offer.
I do know, however, that—zooming out from the legal details and the technical arguments one might make—the end result is bad for democracy either way. To be sure, I am the last person on Earth who wants to see Trump return to power or evade justice for his actions. But I am also aware of the fact that, for many observers, the legal niceties and even the factual truth of the matter tends to fade over time, and what is left is a mere appearance (however unjustified) of partisanship. The Trump campaign knows this and will exploit it to their maximum advantage. For every proven misdeed on Trump's part, they find or invent a parallel claim against Democrats. "Well what about Hunter Biden?" they say.
Given that this is simply a fact of our politics now, what worries me most about the Colorado court decision is that it opens up an entire new terrain of political contestation. If this decision stands as a precedent, then before every election we may expect to see preliminary court battles over who can and cannot appear on the ballot. Republicans and conservative groups will now be suing to get Biden's name taken off the list as well.
Many people reading this will say—but that's ridiculous! There's no evidence that Biden ever engaged in an attempt to subvert an election! But it doesn't matter. Where facts are missing, the MAGA movement can supply "whatever their loose fantasy invent," to borrow a phrase from Yeats. And if anyone thinks this would be too absurd even for such relentlessly unscrupulous people as the current Trump campaign to attempt, they have not been paying attention to the recent rhetoric from Trump world. The most common tactic from members of Trump's circle right now is to simply turn every accusation against the former president around and hurl it back at Democrats.
So they will say: "Oh yeah? Well, Biden subverted democracy too, by trying to arrest Trump before the election; therefore, he is the real insurrectionist, and the 14th Amendment bars him from the ballot!" Obviously that's a ludicrous argument. Biden's appointment of an independent special prosecutor, to investigate extremely well-documented and credible indications that Trump conspired to unlawfully overturn the results of the last election, is not in any way equivalent to the very conspiracy that Trump is being investigated for. But as I say, the MAGA counterargument doesn't have to be true or make sense. They just have to persuade a right-wing state court somewhere that it is plausible enough.
The fact of the matter is, therefore, that there is no way for democracy to win in Trump's court cases. The best that any judges or prosecutors can do is to try to assess the evidence and reach a legal conclusion according to the very highest canons of integrity and independence. The very slightest flicker of partisanship will doom the entire effort to hold Trump accountable, both because it will tarnish the effort in the public mind and because he and his team stand ready to exploit it. I therefore am troubled whenever these cases seem to strain the bounds of credibility. I said it of the Manhattan DA's case, which still strikes me as a weak case, compared to the much more significant charges Trump faces in other jurisdictions, and I say it of the Colorado case too: don't stretch the facts.
Chris Christie is probably right that the Colorado Supreme Court's decision is at best "premature." Trump has not been convicted yet for the crime of conspiracy. And as tempting as it may be to strike him from the ballot and eliminate in one go what seems the greatest current threat to our democratic institutions—namely, Trump's bid for the presidency on an avowed promise to govern as a "dictator" on "day one" of his presidency and to "go after" his political opponents—we must be certain that we are not buying temporary relief at the cost of endless later grief.
"Every bad precedent arose from a good case," as I once quoted a speech from Sallust on this subject. In other words, halting Trump's bid for authoritarian powers is undoubtedly a good case for the intervention of the judiciary. But we must be certain that it does not establish a bad precedent of using the courts to try to strike one's political opponents off the ballot, before the voters have the chance to decide. This does not mean that courts should not investigate and hold Trump accountable. He must not have impunity for his appalling actions in the 2020 election. But if he is stopped by anything other than the most scrupulous standards of legality, due process, impartiality and fairness, then that too is a loss for the rule of law.
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