A most dangerous precedent

The Colorado Supreme Court has ruled that Donald Trump is ineligible to be on the Colorado primary ballot because of his participation in an insurrection against the United States. This is a most dangerous precedent that will undoubtedly be reversed by the United States Supreme Court. Unfortunately, many of those who are anti-Trump have become like those who are only-Trump—outcome based transactionalists who care about neither principle nor precedent, but whether their side wins.

The 14th Amendment states, “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

First, note that the people of Colorado are not actually voting for a president, but initially Republicans in Colorado are determining their own party’s nominee for president. Subsequently, in the general election, Colorado voters are actually voting for Electoral College members and none of the electors have yet been chosen. That raises a legal question in and of itself and, assuming none of the Republican electors were anywhere near the Capitol of the United States on Jan. 6, 2021, the 14th Amendment would not apply. Second, it is a dangerous precedent to conclude that the State of Colorado can declare there was an insurrection against the United States and unilaterally seek to either block someone from being a national party’s nominee for president in that state or block electors to the Electoral College who were, presumably, not involved.

More notably, however, Donald Trump has not been convicted of participating in an insurrection against either Colorado or the United States in any due process hearing. The 14th Amendment cannot be read alone when there is 18 U.S.C. § 2383, which states, “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” That last part clearly echoes and contemplates the 14th Amendment and suggests a due process criminal finding is necessary to stop someone from taking office.

But, and this is the most important part, Trump’s opponents do not care. During the Trump administration, Trump lost several cases before the United States Supreme Court because his administration failed to follow basic procedure. A notable example was the census case asking citizenship questions. The Court ruled it was a lawful act, but the procedures to do it had not been followed. Likewise, the Trump administration attempted to ban Muslim immigrants into the United States. His supporters claimed he had the power. His opponents claimed he could not ban people of a particular religion or ban people without a due process hearing. Those opponents now believe it is fine to deny someone an office without a criminal finding of guilt in a due process hearing.

The precedents will play out against Trump’s opponents even as they double down, insisting there is no way possible that could ever be the case. Except the 14th Amendment applies not just to those who participate in an insurrection against the country, but also fund those who participated.

In 2020, as Black Lives Matters activists rioted through the streets of America, then-United States Sen. Kamala Harris raised money to fund the bail of those arrested. It does not take a real leap from Colorado to Alabama to have a Republican leaning Supreme Court decide Kamala Harris is ineligible to be on the ballot for funding insurrectionists. Democrats insisted no dangerous precedent would be set by Harry Reid scrapping the judicial filibuster in the Senate right up until Republicans won. Unless the Supreme Court steps in and reverses Colorado, the same will happen here.

Ironically, the State of Colorado has only helped Trump. He was never going to win the state’s Electoral College. But now he will undoubtedly go up in Republican primary polling. His fundraising will increase. He and his supporters will have an articulable grievance against Democrats engaging in anti-democratic lawfare to deprive him of the ballot. Like Trump’s Republican opponents, Democrats constantly try to use external events to stop Trump and it trips them all up. The right way to stop Donald Trump is to beat him at the ballot box, not deprive him of access to it. Depriving him of access suggests Democrats are actually worried they cannot beat him democratically.