The law and Trump's behavior

Trump's behavior after the 2020 election creates a dense legal thicket for judges to navigate.

The decisions in Colorado and Maine to deny Donald Trump ballot access because of the conclusion that he participated in an insurrection have been roundly criticized as a partisan overreach by even responsible conservatives, defined for this purpose as not Trump cultists or MAGA adherents. 

However, the responsible conservative critics seem to have difficulty agreeing on the motivation and intent of the alleged partisan overreach. Was it to deny the electorate their democratic choice to lead the country if that choice is Trump? Or was it a cynical scheme to help ensure that Trump is the Republican nominee, since his position as the GOP front-runner seems to be strengthened by every legal attack flung against him, based upon the perception that he is the easiest GOP candidate for Democrats to defeat?

I think the Colorado and Maine decisions were wrong, for reasons articulated below. However, judges and election officials can in good faith decide differently. Neither the decision by the Colorado Supreme Court or the Maine secretary of state made transparent leaps in legal logic or were in defiance of the known facts.

The accusation of partisan overreach is particularly undermined in the Maine case. The linchpin complaint to keep Trump off the ballot was filed by three former state senators, two of whom served as Republicans.

In reality, judges are going to have to negotiate a very dense legal thicket regarding Trump’s behavior following the 2020 election. It should be remembered that judges don’t initiate these cases. They make their way to the judges through cases filed by others. If there are not transparent leaps of logic or defiance of known facts in the decisions, responsible commentators on both sides should be very cautious about impugning motives, rather than evaluating the reasoning as having been rendered in good faith. 

The rule of law in this country has gone through turbulent testing and faces considerably more this year. This is an important time for responsible commentators, again on both sides, to be particularly keen about responding responsibly to the decisions rendered by judges along the way. There will be an avalanche of irresponsible commentary to be leavened.

The claim that Trump is disqualified from being on the ballot is based on Section 3 of the 14th Amendment, which forbids those who have engaged in insurrection after having taken an oath to support the Constitution from holding various public offices. Section 5 of the amendment says that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

In my originalist reading, Section 3 is now a dead letter. The provision was intended to require the confederate South to select new political leadership after the end of the Civil War. Congress initially enacted a law empowering federal district attorneys to pursue civil enforcement actions. However, Section 3 also permitted Congress to override the disqualification by a two-thirds vote. Congress was flooded with requests by individuals to have their disqualification lifted. In short order, Congress enacted a general amnesty lifting the insurrection disqualification from all but a few hundred of the highest ranking confederate officials. 

 There is no existing statute setting forth a civil procedure for imposing Section 3’s disqualification. There is a criminal statute making insurrection a crime, which has its own disqualification provision.

Section 3, however, has not been repealed. The conclusion that it is not a dead letter isn’t an overreach. Nor is the position that Section 3 is self-executing even without a congressional enforcement mechanism in effect. The courts have held that other provisions in the 14th Amendment are self-executing.

If the disqualification provision is self-executing, meaning that it can be imposed by judges without a congressionally enacted mechanism in place, another knotty legal question is under what process might that be done?

It is common for states to have election laws that provide a process for challenging the ability of a candidate to be placed on the ballot. That is the process under which the Colorado and Maine challenges have proceeded.

Those are necessarily expedited and truncated proceedings. The dissents in the Colorado case focused on the insufficiency of such quick-pitch proceedings to serve as the forum for something as weighty as tossing a former president and current GOP front-runner off the ballot.

The Arizona Supreme Court – weighing a similar challenge to the ballot status of Andy Biggs, Paul Gosar, and Mark Finchem – found that Arizona’s election law procedures for challenging ballot eligibility weren’t an appropriate forum for considering disqualification based upon Section 3. 

Now, I agree with the position of the Colorado dissents and the Arizona Supreme Court. However, it is not an overreach to conclude that if a state has a process to determine eligibility for ballot status, all factors relevant to ballot eligibility, including Section 3 disqualification, are appropriately decided in that process.

Which leads us to the mother lode question: Did Trump engage in insurrection?

I don’t think that there is any question that the events of Jan. 6 qualify as an insurrection. It was in part a political rally run amok. But there was an element of the mob who had prepared and plotted such a violent breach of Capitol security to prevent the confirmation of Biden’s Electoral College victory. Some have already been convicted of sedition. 

I have frequently written that, in my opinion, Trump attempted a coup, executing a plot to remain in office despite losing the 2020 election. The Jan. 6 rally was part of the coup attempt.

Here’s what we know for sure. Trump wanted a large, boisterous political rally on the day that Congress was supposed to confirm Biden’s Electoral College victory. The crowd was supposed to intimidate Republican legislators and Vice President Mike Pence into rejecting enough votes from enough states to prevent Biden from reaching an Electoral College majority. And Trump called on the crowd to march on the Capitol. 

Did Trump intend for the crowd to be just an intimidating presence, or did he intend for them to overrun Capitol security and forcibly interrupt the proceedings?

The evidence cited by the Colorado majority in concluding that Trump incited the riot consists entirely of the martial rhetoric Trump employed before and at the rally. The most illustrative was Trump’s call for the crowd to “fight like hell.” Maine’s secretary of state relied on the Colorado court’s evidence and conclusion.

However, martial metaphors are commonly employed by politicians, and political pundits for that matter. As of yet, there is no evidence linking Trump, or his representatives, to the actual plots to potentially deploy force percolating around the Jan. 6 rally. Those participating in them have said that they were interpreting Trump’s public statements as telling them to be prepared to take action. It’s a very slippery, and dangerous, slope to attempt to hold politicians accountable for how their torrent of words are interpreted or acted on by others.

We also know that Trump was at least indifferent to the breach of Capitol security and the endangerment of the members of Congress and his vice president. He sat on his hands for several hours as the maelstrom gathered strength. 

A coup and an insurrection are related, but the former doesn’t necessarily involve the latter. Reckless rhetoric and dereliction of duty can be related to, but aren’t automatically the equivalent of, incitement. 

Simply put, whether Trump engaged in an insurrection within the meaning of Section 3 is a very difficult fact question. And if the answer is yes, what the consequences should be is a very difficult legal question. Indeed, even the appropriate forum in which to make those determinations is a difficult legal question.

I understand the point of view that the courts should stay out of this and other legal challenges to Trump, and let voters decide his fitness for office and whether his behavior following the 2020 election is disqualifying. However, under the rule of law in a republic, not every decision is to be made by majority rule or through elections. 

I believe that Trump’s behavior after the 2020 election should be politically disqualifying. That is appropriately decided by the electorate. However, there are good faith questions as to whether his behavior was legally disqualifying or criminal. Under the rule of law in a republic, those are not to be decided by the electorate, or on the basis of how they might affect the vote. And the decisions made by those before whom they are placed shouldn’t be viewed exclusively through a partisan lens.   

Reach Robb at robtrobb@gmail.com.