Democracy for Me but Not for Thee

We must safeguard the core democratic right to choose the candidate you want in the election, at least until we can get rid of it.

In their heart-of-hearts, the Democrats want Donald Trump as the Republican candidate next year. They figure, probably correctly, that after months and months of seeing him as a criminal defendant, and re-playing ad infinitum the worst moments of his presidency, they’ll beat him. They’re less sure about, say, Ron DeSantis, who has some of Trump’s aggressiveness but none of his personal baggage and recklessness.

Still, underneath it all, the Democrats are worried. They’ve spent years painting Trump as a criminal, a Russian pawn and a lunatic, among other things, but even after all this time, he’s still roughly tied in the polls with Biden. Given his age, Biden is unlikely to get better as a candidate (see, e.g., his inexplicable “no comment” remark when first asked about the wildfire disaster in Maui). Meanwhile, for good or ill, Trump shows no signs of slowing down.

The worry about a Trump victory that lies beneath the Democrats’ current bravado has spawned Plan B: If Trump might win at the ballot box, the thing to do is keep him off the ballot to start with! This can’t be done merely by convicting him, because a conviction, even of a felony, does not under the Constitution disqualify a person from being elected President or holding the Office.

What to do?

Enter the Fourteenth Amendment.

Prof. Jonathan Turley describes the argument like this:

The 14th Amendment bars those who took the oath [to preserve, protect and defend the Constitution] and then “engaged in insurrection or rebellion against the same.” It then adds that that disqualification can extend to those who have “given aid or comfort to the enemies thereof.” According to [various] experts, Jan. 6 was an “insurrection” and Trump gave “aid and comfort” to those who engaged in it by spreading election fraud claims and not immediately denouncing the violence.

Turley has previously written in detail about why this argument to disqualify Trump from the ballot fails, and readers can see his essay for themselves. I tend to be a more simple-minded man, so just let me be quick about it. The argument is a non-starter for at least two reasons.

First, there was no “insurrection or rebellion.” There was a protest that became an illegal riot (and that used force at some points, despite some of the January 6 defendants’ phony claims). But that is not an insurrection, either under the ordinary understanding of that term nor as it was understood by the Fourteenth Amendment’s drafters (what they had in mind was the Civil War).

Second, Trump did not “engage” in the riot even if could plausibly be sold as an “insurrection.” Telling his supporters beforehand that they should rally in Washington and failing to tell them to stand down until after it had become clear that a full-fledged riot is what it had become, is not “engaging” in their acts. It’s grossly irresponsible, a sign of demented or perverse judgment, an astonishing departure from the rectitude we expect in a President, and grounds for concluding that Trump is not henceforth to be trusted with power. But it’s not engaging in a riot or an insurrection. (If we want to know what a riot is, it’s easy to find out by looking, for one of dozens of examples, at what BLM and its members pulled off after the (justified) shooting of Michael Brown in Ferguson, MO. It’s throwing rocks at law enforcement officers, crashing through the plate glass windows, setting fire to police cars, etc., etc.).

Turley adds:

Sulking in the Oval Office does not make Trump a seditionist. Indeed, despite formal articles of the second impeachment and years of experts insisting that Trump was guilty of incitement and insurrection,…Jack Smith notably did not charge him with any such crime….

If Trump supported a rebellion or insurrection, what was the plan? Not only did Smith not charge him with any such crime, but there was little evidence that even the most radical defendants charged were planning to overthrow the nation’s government or were part of a broader conspiracy. There were no troops standing by, no plan for a post-democratic takeover by Trump or his alleged minions. At worst, according to witnesses against Trump, there was a despondent and defiant president who may have gotten satisfaction from the chaos in Congress.

That leaves us with the argument that any effort to stop a constitutional process is akin to an insurrection or rebellion under the 14th Amendment. If that were the standard, any protests — including the anti-Trump protests and the certification challenges to electoral votes in 2016 — could also be cited as disqualifying. If that were the case, figures such as Rep. Jamie Raskin (D., Md) could be summarily purged from office for having sought to overturn an election.

We would be left on a slippery slope, as partisan judges and members would seek to block opposing candidates from ballots, all supposedly in the name of protecting democracy.

Therein lies the delicious dipsy-doodle in the Fourteenth Amendment theory. The most frenzied, and to be honest the most serious, accusation against Trump is that he sought to thwart democracy. But for whatever sick or malicious intent Trump might be thought to have had, he had nothing as destructive of democracy as not allowing the electorate to vote for the opposition at all. Yet, in the name of — yes — democracy, this is what some in academia are now proposing.

It’s enough to give irony a bad name.