If you’re on MSNBC this morning, or maybe on social media, you already know that liberal Constitutional law icon Laurence Tribe has joined with arch-conservative federal Judge J. MIchael Luttig to author a piece in the Atlantic arguing for the disqualification of Donald J. Trump from any office under the Constitution of the United States. www.theatlantic.com/...
It’s short, but it’s an important contribution, ultimately arguing that Trump cannot be trusted to uphold the Constitution. That’s a crucial point to make, and I have little I can add to what they’re saying in the article and on television — but I want to make the case that the most important reason to kick Trump off the ballots is to send a message to Trump voters and supporters.
I used to be pretty prolific here, but I’ve only written one story/diary over the last 3 years….for reasons. No reason to have that conversation now, but I’m writing now because of the grave seriousness of the current situation. This isn’t just another political fight to win at the ballot box. Trumpism is fundamentally un-American and can have no legitimate place in our politics.
Tribe and Luttig are following on the recently released law review piece by 2 Federalist Society academics who traced the legislative history and meaning of the Disqualification Clause, and the precedents of enforcement to make the legal case for declaring Donald Trump disqualified from running for office. That article is remarkably well-researched and argued. I have some concerns about the consequences, but it is a compelling lawyerly presentation. papers.ssrn.com/...
It’s an argument I supported as I participated in efforts by Our Revolution to disqualify an insurrectionist (then a member of our state Legislature in Maryland), who was seeking to become Governor in Maryland. Our appeal to the Bd.of Elections was dismissed and Dan Cox won the GOP primary. Certainly, in some ways, like most Maryland Democrats, I was not displeased to see extremist and presumably almost unelectable Dan Cox on the GOP line, after 2 consecutive losses to Larry Hogan.
Predictably, Cox was utterly crushed by Wes Moore in the general election — and there’s a strong argument to be made for letting the GOP descend into this craziness and getting roundly beaten in general elections — even if that is happening mostly in blue states, blue districts, and a few marginal purple districts and states which might decide control of the White House and Congress.
I also have great concerns about abuses of the Constitutional Disqualification. The question which arises in saying Trump is now ineligible to run for President is how to enforce that bar to holding office for those who “hall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof (enemies of the Constitution and/or the United States).”
And, even if one thinks Trump’s role in an insurrection is not seriously debatable, and even if one takes seriously his declarations that he believes he can and will suspend the Constitution to deal with his enemies, we should not dismiss concerns that we might open a Pandora’s Box by moving to disqualify Trump. I am less sanguine than Tribe and Luttig seem to be that we just put faith in courts as the answer to those concerns...
“We share these concerns, and we concur that the answer to them lies in the wisdom of judicial decisions as to what constitutes “insurrection,” “rebellion,” or “aid or comfort to the enemies” of the Constitution under Section 3.”
Tribe and Luttig cite a blog comment by a Stanford law professor, Michale McConnell — I apologize for linking to an article by the Libertarian Reason magazine, but that’s where Tribe and Luttig linked)…reason.com/...
“We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic.”
Even where we have more non-partisan election administrators like we have in Maryland (appointed by an appointed by a Board of Elections with members from both major parties), they are not free of personal bias and the chief administrator is chosen by a board that has a majority among members of the Governor’s party. I am considering lodging a formal request to disqualify Trump here in Maryland (and possible litigation later). I don’t know how our new Administrator will respond — whether it will be as easily dismissed as our prior effort to disqualify Dan Cox — but I won’t be free of any concern that it’s a dangerous precedent.
GOP partisans who at least publicly support and defend Trump — such as Lindsey Graham, are warning about GOP retaliation. Given how extremist conservative partisans and extremist conservative Trump-appointed judges are conducting themselves in the public arena, I think we all should anticipate that they will cartoonishly use the 14th Amendment to attack Democratic candidates who might have participated in or even expressed support for public protest (or maybe to disqualify some for objecting to Bush’s (rigged) electoral win in FL or Trump’s win in ‘16).
Even with all my concerns about future abuses in challenging Democratic candidates, I believe it’s important to act to keep Trump off the ballots in 2024. As I alluded to above, I agree with Tribe and Luttig when they argue for disqualification now because Trump is a self-declared enemy of the Constitution.
“If Donald Trump were to be reelected, how could any citizen trust that he would uphold the oath of office he would take upon his inauguration?”
I think Trump’s words now as well as his actions in the past make clear that he is a clear and present danger for our Constitution and our democracy. That’s a compelling reason to seek his disqualification from the ballot, but I think there’s a more important reason to do this. As dangerous as Trump is, he is old and mortal. His voters and his supporters are a longer-term threat to our democracy, so long as they are prepared to accept a ‘little insurrection’ to assert their control of our government. That is unacceptable as an electoral democratic principle and also opens the door to naked fascism and authoritarian actions in our daily lives.
We see it in Ron DeSantis’ dictatorial reign in Florida, ignoring the rights of and safety of the state’s residents. We see it also in Gov. Abbott’s efforts to block support for renewable energy, and in his disregard for human life at the border. And, we see it in so many election denying GOP candidates. At the core of this movement is lawlessness among the GOP, putting pursuit of and exercise of power above the public interest and rule of law. We cannot allow this infection to continue to spread and mutate into ever more virulent and deadly strains which will threaten the very fabric of our society.
Lindsey Graham and others will argue we must defeat Trumpism at the ballot box -- that it's a political dispute to be won on Election Day with voters. This view only legitimates Trump and his fraudulent arguments against elections. It also empowers those who seek to chip away at our Constitution in so many other ways. This isn’t just politics. Even if Trumpism loses in Nov. '24, it won't go away. We need to rule it out as illegitimate and un-American. We can’t do that if we meekly accept that Donald Trump should be allowed on the ballot next year.