Portside

On Tuesday, the Colorado Supreme Court held that Donald Trump engaged in insurrection under the terms of Section 3 of the Fourteenth Amendment to the Constitution. Therefore, the court held, he is as ineligible from serving as president as if he was not yet 35 years old or not a natural born citizen, two other constitutional requirements for holding the presidency. 

This decision has raised a lot of questions, both legal and political, about what this means for our democracy, for the election, and for the U.S. Supreme Court. It has generated and will continue to generate no shortage of speculation about how we as a nation and our institutions should meet this moment. Before getting into an analysis of that here, let’s start with two facts on which there should be broad agreement: First, we are only in this situation as a nation because of Donald Trump and his actions. To the extent the nation is at a difficult crossroads, we have Trump to blame. But for his actions, none of this comes to pass. Second, he brought this all upon us because he refused to accept defeat when he lost the 2020 election and his continued refusal to accept that he lost is straining our institutions and our civic fabric.  

Now that he has put us all in this situation, the U.S. Supreme Court – and especially the Roberts majority – has a real dilemma on its hands. It has advertised itself as being a textualist and originalist court, in which the words say what they mean and were intended to mean when adopted. And as several Federalist Society aligned law professors have written persuasively, and as Judge J. Michael Luttig, who comes out of the same legal school of thought as the Supreme Court majority, has argued, the meaning of Section 3 of the Fourteenth Amendment by its terms and intent was to bar someone who did what Donald Trump did from holding office again. 

So if the Court is just applying the law, then a straight read of the law requires them to uphold the Colorado decision.

But of course the Court does not exist in a vacuum. As Jesse Wegman wrote in The New York Times, 

“As the justices in Washington weigh these matters, they will no doubt be aware of the political unrest surrounding them. They know that Mr. Trump has built a large political following and is marshaling his followers to turn against the justice system for indicting him, to intimidate law enforcement officials and court personnel and anyone else who gets in his way. They are aware that he will whip his die-hard followers into a frenzy against the Supreme Court itself, just as he unleashed his followers to try to bend Congress to his will on Jan. 6.”

So the question for the Supreme Court is as much about the Fourteenth Amendment as it is about whether the rule of law or the rule of the mob is the governing order of our land.  

Faced with that question, there can only be one answer: the Court must apply the law without fear or favor.  

Some are already blanching at that possibility and have raised a number of good faith and in some cases bad faith objections. So let’s take them in turn.

The Objections to the Colorado Decision

The first objection is that the Court disqualifying Trump from running might not be the best outcome for the country and that if Trump is to be denied the presidency, better it comes at the hands of voters. This argument rests on the assumption that Trump’s supporters would be more likely to accept a defeat at the ballot box than a disqualification in court.   

But that assessment is belied by the evidence. His supporters got a chance to accept his defeat at the ballot box in 2020 and in large numbers refused. Letting the voters throw him out, so to speak, led to a violent insurrection and him running again on an even more openly authoritarian platform. It’s unclear why those making this argument expect anything different to happen if he loses at the ballot box this time. In all likelihood, having had several years to rally his base into even greater distrust of elections and our institutions, their reaction to a Trump electoral loss in 2024 is likely to produce an even more destructive reaction than in 2020. That is hardly something for the Court to defer to. 

A second and related concern is a more small-d democratic one: that as a matter of governing philosophy it should ultimately be up to voters to decide who the president should be, not courts. That may be a reasonable political theory, but it is decidedly not what the American Constitution lays out. The Constitution has numerous gating requirements for the presidency: a 35-year-old age requirement and the requirement that candidates be natural born citizens are just two of them. Earlier this month, the Republican Secretary of State in Arkansas barred the talk show host Cenk Uygur from appearing on their presidential ballot because Uygur was born overseas. There were no howls of protest from those objecting to the Colorado decision. 

That the experience of the Civil War led the United States to add an additional restriction against those who have so grossly violated an oath to the Constitution they once took from being able to serve again is a reasonable decision for us to have made to avoid a repeat of that tragic era. We could decide as a country to remove that restriction by amending the Constitution (or Congress can override it by a two-thirds vote in individual circumstances under the very terms of Section 3), but short of that, simply nullifying or ignoring it makes no more sense than nullifying or ignoring the First Amendment or the Equal Protection Clause if a bare majority of people at a single moment in time prefer that.

And let’s not forget, if Trump’s argument is that the majority of voters should ultimately determine the president full stop, he wouldn’t have become president in 2016, when the majority of voters preferred his opponent.

A third objection is rooted in a fear of violence. But surely as a nation we do not believe violent mobs should be able to intimidate courts into declining to apply the law. We have already read reports that Members of Congress may have declined to vote to impeach and/or convict Trump after impeachment out of fear that doing so might subject themselves or their families to violent retaliation by Trump’s most extreme followers. Do we really believe the violent mob he has stirred up should be able to now intimidate a second branch of government to bend its knee to Trump?

But even if one believes the Court should take the risk of violence into account, Trump’s most extreme supporters are unfortunately just as likely to engage in violence if he loses at the ballot box. They’ve already shown that in 2020. And worse, experts on political violence warn that violence can be more pronounced when autocrats win than when they lose. When they win their most violent supporters feel empowered and protected. So if a faction within Trump’s base may be prone to engage in violence if he wins or if he loses, should the Court contort the law to defer to that? 

A fourth objection is procedural: that Trump has not been afforded “due process” and should not be deprived of an opportunity to run without that. This objection is wrong as a matter of both facts and law. On the factual side, Donald Trump is a party in the Colorado case! There was a five-day trial in the case in which Donald Trump was able to make both factual and legal submissions to the court. Trump will be able to make his case to the U.S. Supreme Court just as he’s been able to make his case in the Colorado courts. As a legal matter, critics raising this objection are conflating the rights our system affords to criminal defendants with the rights our system affords in non-criminal proceedings. Holding office is a privilege, not a right. One’s eligibility to do so is therefore subject to a lower standard of procedural protections than we give to people whom the system seeks to deprive of their very freedom.

There is fairly broad legal consensus that Section 3 of the 14th Amendment does not require a criminal conviction for a crime of “insurrection” to apply. As CREW (who brought the Colorado case on behalf of several Republican voters) notes in a report, of the seven historical precedents of people being disqualified under Section 3, not one of them “was charged under the criminal ‘rebellion or insurrection’ statute (18 U.S.C. § 2383) or its predecessors.” Section 3 imposes a civil consequence, not a criminal penalty.

It therefore does not require the same procedures that Donald Trump is entitled to in his criminal cases. He’ll get those protections in the four cases in which he’s been criminally indicted on 91 felony counts. But the Colorado case is a civil question of legal interpretation for which Trump is receiving the same due process protections that every candidate for office receives when their eligibility is challenged – something that frankly happens across the country in lower-stakes cases all the time. 

A fifth objection is that the Colorado case and subsequent proceedings in the Supreme Court are bad for the country because they are politically helpful to Trump, and since he has shown himself to be a danger to the Republic, anything that helps him is bad for the country. There’s likely some truth to the fact that civil and criminal cases against Trump that he can use to paint himself as a victim are helpful to him in the Republican primary. But the general election is a different story. History and international experience show that accountability for gross abuses of power tends to reduce the chance of those abuses continuing into the future. In the US, in our laboratories of democracy, when state chief executives have been held accountable for abuses of power, the legal process playing out has actually been the thing that ultimately lessens their political support. In short, our system tends to work when it is applied. 

And a final objection is that the U.S. Supreme Court is almost certainly going to overturn this decision and so it has been a misguided effort and distraction to pursue this path at all. I’ll admit, a version of this objection informed why we at Protect Democracy declined to bring one of these cases. That and a concern that disqualifying candidates from the ballot is a tool that can be misused and has been by autocrats overseas and we should not unsheath that sword if the case was likely to ultimately fail. But that ship has sailed. And there’s a compelling counterargument that any law can be misused but that’s not a sufficient reason not to apply it in the situations for which it was properly intended.

While speculation about how the Supreme Court will rule in any case is a popular pastime, it’s premature to declare that anyone knows what the Supreme Court will ultimately do. Sure, there are two justices who will use this case in whatever way they think will most benefit Donald Trump. Clarence Thomas and Samuel Alito are such loyal foot soldiers in the Trumpist March on Rome that they’ve effectively traded in their black robes for red hats. But the other seven justices may be harder to predict here. Beyond the earlier points about textualism and originalism, the other seven justices have repeatedly declined invitations to step in and help Donald Trump in cases in which his personal interests are before them. Unlike Members of Congress who must frequently run for office before a Trumpified GOP primary electorate, the justices are not as subject to that pressure. And as we’ve seen among retired Republican office holders, when no longer faced with the need to run in a GOP primary, they are much more comfortable calling Trump out for the insurrectionist he is. 

Beyond the merits, though, one potential upshot of this case is that it might – and it should – force the Court to realize that it cannot avoid playing a role in the 2024 election and the sooner it resolves all of the relevant cases, the better.

The harsh reality is that the only way to get past this crisis for our democracy is to go through it. We can’t avoid the calamity Trump has created. And twisting our institutions into pretzels to bend to his corruption just capitulates to him in advance. Our institutions were built to survive this. But only if we use them. Only if they do their jobs. Abdication, capitulation, surrender? That’s how we guarantee democracy loses.

This Case is a Feature of our System, not a Bug 

Rather than view the current legal situation with regret, we should view this as the system working. Yes, there’s one view of this situation that it is really unfortunate and almost untenable for the Court to be put in this position. That view, which the Justices may be thinking, is that it would be profoundly problematic for the Court to intervene in an election in this way and deprive the people of their choice of candidate. That is the view that sees checks and balances as a bug in the system, rather than a feature.  

But that’s precisely upside down. The Founders intentionally created three branches that would check and backstop each other as the best safeguard against tyranny. If, for example, the legislative branch in some way failed to safeguard self government — if, for example, it was so captured by a faction that it failed to convict an impeached president for inciting an insurrection — then there would be a backstop: one of the other branches, either the executive and the courts through prosecution and conviction and/or the courts through implementation of constitutional backstops.  

The Court upholding the Colorado Supreme Court decision, even in the face of extreme political pressure to do otherwise, would be the greatest vindication of the American Constitutional system and the founders’ invention.

The notion that because the political branches or even the voters caught up in the heat of temporary passions have declined to stop a tyrant, the courts should as a result step aside ignores the fundamental genius and design of the system the Founders built: which is one of overlapping checks against tyranny. 

The Colorado case is a feature, not a bug, and the Court upholding the Colorado Supreme Court decision, even in the face of extreme political pressure to do otherwise, would be the greatest vindication of the American Constitutional system and the founders’ invention. If one believes, as the Court majority does, that the Framers were indeed inspired, this is their chance to show fealty to that design. Not when it’s easy, but precisely when the Founders hoped they would in providing them life tenure: when it’s hard. 

The Real Political Import

But whatever the Court decides, the American electorate now has a new fact before it: again, from The New York Times: “A state Supreme Court has found that Donald Trump engaged in an insurrection in his efforts to overturn the 2020 election by inciting a violent mob to attack the Capitol and is therefore disqualified from serving again as president.” Regardless of how this section of the Constitution is ultimately interpreted and applied, “Shouldn’t both major parties insist on presidential candidates for whom such questions are not even remotely at issue?”

Because at the end of the day, we as voters want to keep our power to govern ourselves. Above all else, we don’t want someone who imposes his will, his interests, his power over ours. We fought a revolution to be free of such tyranny, and fought a civil war to add protections against it like the one at issue here. And if our system is stepping in here to protect our power to self govern thanks to the ultimate sacrifices made by so many patriots who came before us, that is something to be celebrated.

Ian Bassin is co-founder and Executive Director of Protect Democracy. He previously served as Associate White House Counsel, where he counseled the President and senior White House staff on administrative and constitutional law.