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 is 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.
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 [email protected].
