Democrats, dispirited after recent polls showing Donald Trump running ahead of Joe Biden, and facing the unendurable possibility of another four years of the Orange Beast, finally got a bit of encouraging news. One of their “Hail Mary” passes, the use of an obscure portion of the 14th Amendment barring anyone who has engaged in “insurrection” from holding office, appears to have gotten a little traction, when both Maine’s secretary of state, and the Colorado Supreme Court, ordered Trump stricken from the ballot, although these orders were appealed to the U.S. Supreme Court. Similar actions in other states are pending.
This development must be welcome. After three years of soaring inflation and high gas prices, skyrocketing crime, an onslaught across an open border so bad that even the blue Northern cities are squealing under the load, the fiasco in Afghanistan, and a Democratic coalition that is disintegrating over the Gaza war, things were not looking good. Combine that with Biden’s visible deterioration, a running mate with as much appeal as week-old roadkill, and the lack of any viable alternative candidates who could step in, and things were looking pretty grim.
But, before breaking out the champagne and the party poppers, a couple of things to consider:
First, when was the formal determination that Trump had engaged in insurrection made? While the 14th Amendment doesn’t require a criminal conviction, it also doesn’t disqualify anyone who is merely “accused” of insurrection or “believed” by someone to be an insurrectionist. It is silent on the process. Thus, a factual determination by a competent authority is necessary.
The same 14th Amendment that sets out this law also establishes the obligation of the states to exercise due process in making such determinations. Allowing partisan state officers to unilaterally determine whether the candidates of their opposing party should be disqualified—especially when they do so without a public trial, nor receipt of competent evidence, nor the right of cross-examination—is not “due process.”
Now, I realize that most of you just know that Trump is an insurrectionist and see the technicality of a trial as a waste of time. After all, The New York Times, CNN, social media, and the chattering pundits all say he is, and his guilt is an article of faith among Democrats. But the more thoughtful among you should realize the sort of problems that might arise if the political officers of various states are allowed to disqualify their opponents. It is not hard to imagine a political figure in some red state making the unilateral determination that Joe Biden is incompetent, or that his actions with Hunter render him unfit for office. It would be opening up a real Pandora’s Box. Stunts for momentary political advantage, such as Democrat Harry Reid’s “nuclear option,” ended up giving Trump three Supreme Court appointments.
And, are the acts that Trump is accused of committing actually “insurrection,” a term usually associated with seizing power by force, and generalissimos in tanks on the palace lawn? You charge him with lying about the outcome of the election, and even created the term “election denier” to condemn him, but is denying that you lost “insurrection”? Recall that Al Gore insisted that he had won in 2000 and used legal tactics to try and overturn the count in Florida. Insurrection? Whining is protected by the First Amendment. Just because you have suddenly discovered that disputing electoral outcomes is unforgivable does not make it insurrection.
Asking an official to “find” more votes? Politicians cheat all the time, and while it is illegal and pretty sleazy, it is hardly “insurrection.”
The bottom line: To prove Trump guilty of insurrection, you will need to show that he participated in, or at least knew of, the plans to invade the Capitol and prevent the counting and certification of the vote.
Disqualifying a candidate is an extraordinary act, especially when this candidate is leading among the voters for the highest office. It is unavoidably undemocratic, and sure to enrage a substantial portion of the voters. It is not something that should be done lightly or while drunk on partisan passions.
Still, the 14th Amendment says what it says, and must be applied. If our system is to survive the use of a remedy as drastic as disqualification, it should be applied carefully, deliberately, and with unquestionable fairness. It must not be seen as a “banana republic” bare political power play, to be avenged in kind at the next opportunity. That would be a terrible road to head down.
My personal preference would be to see Trump out of the race and a more electable candidate running. Still, for the good of the country, Trump should be beaten at the ballot box, not by political stunt. Δ
John Donegan is a retired attorney in Pismo Beach, who has never been an insurrectionist, but who curses the government while doing his taxes. Respond with a letter for publication by emailing letters@newtimesslo.com.
This article appears in Jan 18-28, 2024.
In a rare instance of agreeing with Donegan, I would like to see TFG soundly defeated at the ballot box, but who on the right would accept those results this time around? Michael Cohen pointed out years ago that the wannabe mobster boss uses code to encourage lawlessness and violence without implicating himself. The code was easily interpreted by the likes of Michael Flynn and Ginny Thomas, but nobody that far up the ladder is being held accountable. Democracy is in for a rough ride this year.
Agreed John. Words are important, and words like “insurrection” cannot be re-defined. And to apply the true meaning of that word in a premeditated sense is key to his conviction. Proof of premeditation and subsequent conviction is the essential preamble to all these contemplated actions centering around the 14th amendment.
As frustrating as it is, It’s all got to legally play out at whatever pace is does…even if it’s so slow that the big sociopath is elected, then convicted, then ends up pardoning himself. Not a scenario I’m fond of either, but our rule of law must remain foundational…even in disappointment. Bitter disappointment.
@Steve Felton: Who is “TFG”?
This is a good example of John’s parroting of falsehoods that serves to cast doubt on the rest of his argument: Crime is NOT “skyrocketing” by any measure. In fact, violent crime has fallen by more than half in the past thirty years, and continues to fall. Now it’s true that some states have very high violent crime rates–Arkansas, Tennessee, Louisiana, Alabama, and Alaska (all “Red” states)–lead the list, but nationwide crime rates have plummeted. Of course, if you listen to Fox News and the RNC, and rely on them for your “facts,” you’ll not know this, because “ooh scary crime!” has been a staple lie of the GOP since well before the Willy Horton ads popped up in the 1988 Bush campaign. I do agree with Mr. Donegan that Donald Trump should be beaten soundly and loudly at the ballot box, and then I would take comfort in seeing Trump languish in a prison cell until his departure from this mortal coil, on which day I will join thousands to dance in the streets.
Yep, thanks tsankawi, crime is really not an issue. Hasn’t been for years. It declined for years despite Republican fear mongering. There was an uptick during the pandemic, but that was to be expected. New reports indicate that violent crime is way down since 2022. In fact, murders were down a record 2,000 between 2022 and 2023. Indeed, the right wing continues to be ill informed on the facts.
For those Democrats who are petrified of another Trump presidency, I think they should register Republican, at least in closed primaries like in CA, and vote for Haley. At least then we have chance not to have a rematch betw two old white guys.
@Michael Smith: I am not so sure that “crime is really not an issue”. In today’s news, it was reported that an In N Out hamburger restaurant in the very Democratic city of Oakland, was closing due to high crime and the danger to staff and customers from repeated robberies. This is the first store that In N Out has ever closed, and was profitable. If a business is forced to close a profitable business due to violent crime, perhaps it is more of a concern than some of us in serene and bucolic SLO may wish to acknowledge.
Sorry, nope. The Orange One Term Loser was defeated in a landslide. He lost the popular vote both times. To suggest his innumerable lies about election fraud, his incitement, aid and comfort to those storming our Capitol somehow preclude him being subject to the 14th Amendment is absurd tortured logic.
@Jos Swinney: Read my column more closely. I never said that Trump should be precluded from being subject to the 14th Amendment, just that he had to be proven guilty of insurrection for it to apply.