Disqualifying Trump? It’s a collision course

By Arlene Violet
Posted 1/5/24

The Colorado court’s ruling disqualifying Donald J. Trump as a candidate for the presidency on the basis of the 14th Amendment, a clause of which eliminates from holding an office anyone who …

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Disqualifying Trump? It’s a collision course


The Colorado court’s ruling disqualifying Donald J. Trump as a candidate for the presidency on the basis of the 14th Amendment, a clause of which eliminates from holding an office anyone who engaged in insurrection, has now set up a collision course of competing considerations of American democracy. There is no good choice that would avoid cracking democracy. Here’s why.

The Case against Mr. Trump

Under the rule of law  the Constitution applies equally to everybody and the reason for life tenure for judges on the United States Supreme Court is to insulate them from self-promotion at the expense of that application. At stake is the interpretation of a clause added after the Civil War which excludes folks who betray their governmental oaths. To be sure, the record is still incomplete on what exactly Mr. Trump did or didn’t do on January 6th and the days before and after that riot; but if the language is clear and unambiguous, then, as the Colorado Court said, the justices must enforce it as written. There isn’t a lawyer alive who won’t argue for Mr. Trump that it isn’t that unambiguous although that is a tough sell for the Republican-appointed justices on the high court, since many of them are strict constructionists, like the late Justice Antonin Scalia, who held that the founders did anticipate everything and they must strictly construe the language in the Constitution. The United States Supreme Court did intervene in the 2000 election which overrode the Florida Supreme Court and in the eyes of many the Republican conservative justices stole the election from Al Gore and gave it to George Bush. A favorable ruling for Mr. Trump by the supermajority Republican appointees will smack of partisanship anew, particularly given the strict constructionist stance of these justices.

The Case for Mr. Trump

Under the principle of democracy an elected official’s authority is rooted in the proposition  that voters decide whom to put in charge. Further, there are systems put in place which could have avoided a Supreme Court showdown. Nine more Republicans in the Senate could have voted to impeach Mr. Trump thereby averting a Supreme Court potential showdown. Right now, Republican primary voters could derail the upcoming conflict by voting for somebody else. Of course, the voters  on Election Day could hand Mr. Trump a defeat.

If the Supreme Court allows a victorious Trump to assume office, it will justify its action as letting the voters decide as the governing principle. Yet winners of the popular vote don’t always win elections. In 2016, Hillary Clinton got more votes than Mr. Trump, who nonetheless won because of the Electoral College provision in law. Ergo, voters don’t strictly decide.

The conundrum is that there is such fractious elements in this country that any decision will lead to the further fracturing of democracy even if technically correct. The “darned if you do or darned if you don’t” maxim will really just evoke a “damn.” While there have been other echoes of disqualification in the past, this decision comes at a time in history which will be an earthquake for the body politic!

Arlene Violet is an attorney and former Rhode Island Attorney General.

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