The second impeachment trial of Donald Trump, concerning his role in the January 6 coup attempt, began on February 9, 2021. Almost exactly three years later, on February 8, 2024, the Supreme Court will hear oral arguments over whether that last, desperate effort to illegally hold on to power might now disqualify Trump from returning to the Oval Office.
Many commentators have argued that the nine justices should overturn the Colorado Supreme Court’s decision barring Trump’s candidacy for reasons of prudence alone. “Keeping Mr. Trump off the ballot could put democracy at more risk rather than less,” the law professor Samuel Moyn warned in The New York Times. “To deny the voters the chance to elect the candidate of their choice … would be seen forever by tens of millions of Americans as a negation of democracy,” the New York columnist Jonathan Chait wrote.
But these arguments ignore that keeping Trump on the ballot is also a choice—one forced by Trump’s own actions—and that just as there are risks to barring him, there are also risks to disregarding the clear command of the Fourteenth Amendment. The section of the Amendment at issue—Section 3—sets certain conduct outside the bounds of what’s acceptable for public officials in a democratic society. Congress made that determination not on a whim, but in the years following a bloody conflict that killed hundreds of thousands of Americans and demonstrated just how serious the implications of violating that boundary can be. As a brutal effort to unlawfully derail the peaceful transfer of power, January 6 falls well within the range of conduct forbidden by Section 3. What message would the Supreme Court send if it closed its eyes to that prohibition—especially in the months before yet another presidential election with the threat of violence hanging over it?
Hiding beneath the surface of many of the arguments against disqualifying Trump is the sneaky suggestion that January 6 wasn’t all that bad—unpleasant, perhaps, but nothing worthy of being called an insurrection. This ignores both the horror of that day and the risk posed by a presidential candidate who continues to insist that he won in 2020, refuses to say that he will accept the results of the 2024 election, and routinely eggs his supporters on to further violence. “I just hope we get fair treatment,” Trump commented after the Colorado Supreme Court’s ruling. “Because if we don’t, our country’s in big, big trouble.” The Fourteenth Amendment establishes that such conduct is unacceptable for a potential president, and it is in the interests of American democracy—unless you define democracy as mob rule—to reaffirm that determination. If the Court balks at this, then Trump will once again take away the message that he can act with impunity. [Continue reading…]