In “How Democrats Could Disqualify Trump If the Supreme Court Doesn’t,” Atlantic staff writer Russell Berman makes an incredibly dangerous argument.
Near the end of the Supreme Court’s oral arguments about whether Colorado could exclude former President Donald Trump from its ballot as an insurrectionist, the attorney representing voters from the state offered a warning to the justices—one evoking the January 6 riot that had set the case in motion.
By this point in the hearing, the justices had made clear that they didn’t like the idea of allowing a single state to kick Trump out of the presidential race, and they didn’t appear comfortable with the Court doing so either. Sensing that Trump would likely stay on the ballot, the attorney, Jason Murray, said that if the Supreme Court didn’t resolve the question of Trump’s eligibility, “it could come back with a vengeance”—after the election, when Congress meets once again to count and certify the votes of the Electoral College.
Murray and other legal scholars say that, absent clear guidance from the Supreme Court, a Trump win could lead to a constitutional crisis in Congress. Democrats would have to choose between confirming a winner many of them believe is ineligible and defying the will of voters who elected him. Their choice could be decisive: As their victory in a House special election in New York last week demonstrated, Democrats have a serious chance of winning a majority in Congress in November, even if Trump recaptures the presidency on the same day. If that happens, they could have the votes to prevent him from taking office.
So, let me get this straight. The United States Senate has already acquitted Trump of insurrection-related impeachment charges. The United States Supreme Court will have ruled that the Insurrection Clause of the 14th Amendment does not apply to Trump. The American voters will have chosen at least 270 Trump Electors. And Democrats in Congress are then going to say, “Nope, he’s an insurrectionist so he doesn’t get to be President!”
That would spark rioting that would make January 6 seem like a peaceful protest.
Thankfully, most elected Democrats seem to understand that:
In interviews, senior House Democrats would not commit to certifying a Trump win, saying they would do so only if the Supreme Court affirms his eligibility. But during oral arguments, liberal and conservative justices alike seemed inclined to dodge the question of his eligibility altogether and throw the decision to Congress.
“That would be a colossal disaster,” Representative Adam Schiff of California told me. “We already had one horrendous January 6. We don’t need another.”
Like it or not, if Trump is on the ballot in November and wins, he’s the next President. Given that it’s really unlikely that the courts will keep him off the ballot, the thing to do is defeat him at the ballot box.
The justices could conclude definitively that Trump is eligible to serve another term as president. The Fourteenth Amendment bars people who have “engaged in insurrection or rebellion” from holding office, but it does not define those terms. Trump has not been convicted of fomenting an insurrection, nor do any of his 91 indictments charge him with that particular crime. But in early 2021, every House Democrat (along with 10 Republicans) voted to impeach Trump for “incitement of insurrection,” and a significant majority of those lawmakers will still be in Congress next year.
So, look, I think Trump was guilty of incitement of an insurrection—at least in a political sense, if not technically in a criminal sense. But “impeachment” by the House is merely the formal bringing of charges. Like it or not, the Senate is the trier and they acquitted him.
Yes, that was because all but a few Senate Republicans were spineless. But this has been the history of presidential impeachments. Indeed, neither of the two pre-Trump Presidents to have been impeached, Andrew Johnson and Bill Clinton, received a single guilty vote from a co-partisan Senator. It’s a political process but, alas, it’s the one written into our Constitution.
If the Court deems Trump eligible, even a few of his most fervent Democratic critics told me they would vote for certification should he win. “I’m going to follow the law,” Representative Eric Swalwell of California told me. “I would not object out of protest of how the Supreme Court comes down. It would be doing what I didn’t like about the January 6 Republicans.” Schiff, who served on the committee that investigated Trump’s role in the Capitol riot, believes that the Supreme Court should rule that Trump is disqualified. But if the Court deems Trump eligible, Schiff said, he wouldn’t object to a Trump victory.
Because to do so would be insane. Democrats could certainly deliver speeches saying Trump is an insurrectionist and should be ineligible. But, the Supreme Court having ruled otherwise, they are obligated to follow the mandate of the voters. Indeed, doing otherwise would itself be at least as much an insurrection as the one Trump tried to lead.
What if the Court declines to answer? “I don’t want to get into the chaos hypothetical,” Schiff told me. Nor did Representative Jim Clyburn of South Carolina, who served in the party leadership for two decades. “I think he’s an insurrectionist,” he said of Trump. Minority Leader Hakeem Jeffries, who would become speaker if Democrats retake the House, did not respond to questions sent to his office.
That, of course, is a different scenario but only marginally so. If Trump is on enough ballots to win the Presidency and then does so, he’s the President.
Even as Democrats left open the possibility of challenging a Trump win, they shuddered at its potential repercussions. For three years they have attacked the 147 Republicans—including a majority of the party’s House conference—who voted to overturn President Joe Biden’s 2020 victory. More recently they’ve criticized top congressional Republicans such as Representative Elise Stefanik, the House GOP conference chair, for refusing to commit to certifying a Biden win.
The choice that Democrats would face if Trump won without a definitive ruling on his eligibility was almost too fraught for Representative Jamie Raskin of Maryland to contemplate. He told me he didn’t know how he’d vote in that scenario. As we spoke about what might happen, he recalled the brutality of January 6. “There was blood all over the Capitol in the hypothetical you posit,” Raskin, who served on the January 6 committee with Schiff, told me.
It’s a nightmare scenario. But, again, there’s simply no viable choice in the event Trump wins the election.
Theoretically, the House and Senate could act before the election by passing a law that defines the meaning of “insurrection” in the Fourteenth Amendment and establishes a process to determine whether a candidate is barred from holding a particular office, including the presidency. But such a bill would have to get through the Republican-controlled House, whose leaders have all endorsed Trump’s candidacy. “There’s absolutely no chance in the world,” Representative Zoe Lofgren, a California Democrat who also served on the January 6 committee, told me.
In late 2022, Congress did enact reforms to the Electoral Count Act. That bill raised the threshold for objecting to a state’s slate of electors, and it clarified that the vice president, in presiding over the opening of Electoral College ballots, has no real power to affect the outcome of the election. But it did not address the question of insurrection.
As Republicans are fond of pointing out, Democrats have objected to the certification of each GOP presidential winner since 2000. None of those challenges went anywhere, and they were all premised on disputing the outcome or legitimacy of the election itself. Contesting a presidential election by claiming that the winner is ineligible, however, has no precedent. “It’s very murky,” Lofgren said. She believes that Trump is “clearly ineligible,” but acknowledged that “there’s no procedure, per se, for challenging on this basis.”
While I believe the Insurrection Clause is active law, it was clearly designed to address the very specific instance of the Confederate leadership. Otherwise, it would have had some language about how to go about determining who was an insurrectionist.
Regardless, we seem to be testing the “how” right now. At least two states have declared Trump ineligible after legal proceedings on the matter. The Supreme Court has agreed to hear appeals. We’ll see what they do but I would be very surprised if they allowed the bar to stand.
In an amicus brief to the Supreme Court, a trio of legal scholars—Edward Foley, Benjamin Ginsberg, and Richard Hasen—warned the justices that if they did not rule on Trump’s eligibility, “it is a certainty” that members of Congress would seek to disqualify him on January 6, 2025. I asked Lofgren whether she would be one of those lawmakers. “I might be.”
The scholars also warned that serious political instability and violence could ensue. That possibility was on Raskin’s mind, too. He conceded that the threat of violence could influence what Democrats do if Trump wins. But, Raskin added, it wouldn’t necessarily stop them from trying to disqualify him. “We might just decide that’s something we need to prepare for.”
Quite possibly at considerable scale: another civil war.
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Author: James Joyner
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