Sunday, May 26, 2024

Opinion | Trump triggers the politics of emergency

Opinion | Trump triggers the politics of emergency

President Donald Trump unconstitutionally refused to honor the 2020 election result and tried to overturn it. Does that mean it’s unconstitutional to honor the results of the 2024 election if Trump wins? This disorienting logic is about to be hurled into the presidential campaign’s legal-constitutional vortex, stretching American institutions closer to their limit.

The basis is Section 3 of the 14th Amendment, ratified after the Civil War, which disqualifies public officials who “engaged in insurrection” against the United States or gave “aid or comfort to the enemies thereof” from holding future office. Following this language, the House of Representatives impeached Trump for “incitement of insurrection” after the Jan. 6, 2021, mob violence at the Capitol.

Media and scholarly interest in the 14th Amendment’s disqualification clause surged after the riot but waned after the Senate acquitted Trump. That seemed to take his disqualification off the table. But a new 126-page paper by two prominent originalist law professors argues that Trump’s Jan. 6 disqualification is “automatic” and not controlled by the outcome of a congressional process or criminal trial.

Slated for publication in the University of Pennsylvania Law Review, the paper adds significantly to the intellectual arsenal of activists and officials who will try to remove Trump from the 2024 ballot. Indeed, the article reads not merely as a scholarly inquiry about the amendment’s original meaning but as a call to action: “Officials — administrators, courts, legislators — whose responsibilities call upon them to apply Section Three properly and lawfully may, indeed must, take action within their powers to preclude Trump from holding future office,” says the paper, by William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas.

It now seems inevitable that this exhortation will be tested. Trump holds a commanding lead in the Republican primary polls. It takes only one official, in one state, to disqualify Trump to set a legal challenge in motion. If any state supreme court — in California? Illinois? Vermont? — agreed with Baude and Paulsen, Trump would appeal to the U.S. Supreme Court, and it would be hard for the justices to duck, mid-campaign, a request to rule on the constitutionality of a presidential candidate’s removal from the ballot.

Since the 2021 Senate acquittal, even Trump’s most committed opponents seem not to have considered 14th Amendment disqualification a viable path to blocking him in 2024. That might well change in the coming months as states prepare their primary ballots and administrative and legal challenges to Trump’s inclusion begin. Such disqualification efforts, proceeding in parallel with Trump’s four criminal proceedings, would polarize the public further into hardened pro- and anti-Trump camps.

The Post’s reporting has suggested that the Justice Department held back on criminally pursuing Trump until the House’s select committee on the Capitol attack turned up the political heat. A similar dynamic could take hold with disqualification as center-left Democrats and anti-Trump Republicans, who previously might have been queasy about such a radical step as striking a candidate from the ballot, acclimate themselves to the idea. If the threat from Trump continues to grow, establishment opinion will drift toward a politics of emergency.

In emergencies, of course, civil liberties tend to be constricted. Baude and Paulsen concede that their sweeping constitutional vision of disqualification-for-disloyalty could “perhaps” be “a little dangerous” for “First Amendment liberties of speech, press, assembly, religion, and the right to dissent generally.” But they argue that disqualification is nonetheless required by the Constitution. To support their interpretation, they point to President Abraham Lincoln’s restrictions on dissent during the Civil War. That the Jan. 6 riot wasn’t a full-scale rebellion like the Civil War is immaterial, they say; it was an “insurrection,” and any insurrection triggers Section 3.

Their analysis is not persuasive — certainly not oftheir view that Trump’s “case is not even close.” An insurrection in a colloquial or political sense is not the same as an insurrection in a constitutionally binding sense. The Congressional Research Service notes that the Insurrection Act describes a situation in which it is “impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.” That doesn’t seem to apply to the Jan. 6 violence, after which participants were vigorously prosecuted in federal court.

Trump probably gave “aid or comfort” to the mob with his disgraceful delay in responding to the violence at the Capitol — but to be constitutionally disqualified, an official must give aid or comfort to “enemies” of the country. As the Congressional Research Service also notes, “history … suggests that an ‘enemy’ is one who owes allegiance to an opposing government and not merely a U.S. citizen opposing the U.S. government.”

Such arguments are likely to lose relevance, though, if Trump’s rise to the GOP nomination, and potentially the presidency, continues. His disqualification could become a partisan imperative, a titanic political struggle. Edward B. Foley recently described in these pages how the question could be resolved in a timely fashion by the Supreme Court. I hope he’s right, but such a polarizing controversy about a major candidate’s eligibility for office is a leap into the unknown — in the states, in the electoral college and in Congress.

Originalist law professor John Eastman’s fringe legal theories about how to overturn the 2020 election helped create the conditions for the Jan. 6 riot. Untested ideas about a presidential candidate’s constitutional disqualification — in effect overturning an election before it happens — could have similarly unpredictable consequences. By the way, if the Supreme Court holds that Trump is qualified, could a Trump-friendly prosecutor charge those who attempted to block him from the ballot with election interference?

The nation is playing with fire. Through his egregious conduct after the 2020 election, Trump ensured that a third presidential campaign would trigger a sense of emergency in the American establishment. Special counsel Jack Smith is racing to convict him before the 2024 election (and Trump could be muzzled or jailed before trial if he defies District Judge Tanya S. Chutkan’s admonition that his “defense is supposed to happen in this courtroom, not on the internet”). Trump voters’ sense that elites are trying to forbid them to vote for the candidate of their choice might only grow if a campaign to disqualify him gets underway.

Whether Trump is disqualified or not, or convicted or not, and whether he wins or loses the presidency, American political legitimacy will be inescapably damaged by the 2024 election if the former president remains the GOP standard-bearer. The only realistic opportunity to control the flames now belongs to Republican voters, who can still make a different political choice.

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