The Atlantic’s Tom Nichols weighed in yesterday on the debate, such as it is, over whether the 14th Amendment can be used to render former president Donald Trump ineligible to serve in the Oval Office. To Nichols’s credit, unlike many in the mainstream media who credulously promote the idea that Democrats should seek to remove Trump’s name from the ballot, he does acknowledge counterarguments. But the ones he acknowledges aren’t the ones those who worry about the thought of a second Trump administration should be thinking about.
Section three of the 14th Amendment, the one former judge Michael Luttig and liberal law professor Laurence Tribe say could disqualify Trump from contention, bars those who used their capacities as officeholders to join or aid an “insurrection or rebellion” against the United States from holding political office. The counterargument Nichols addresses is one of fellow Atlantic writer David Frum, who says “if Section 3 can be reactivated in this way, then reactivated it will be. Republicans will hunt for Democrats to disqualify, and not only for president, but for any race where Democrats present someone who said or did something that can be represented as ‘aid and comfort’ to enemies of the United States.”
Nichols writes that he is “overall more inclined to agree with David’s prudential arguments anyway. But Luttig and Tribe make a simple and forceful point that still sticks in my teeth: The Constitution says what it says, and it doesn’t stop saying it just because enforcing it would be hard to do or because bad actors will use it for political mischief.” But, as Andy McCarthy points out, there has never been a legal insurrection case against Trump.
One of the considerations that potential believers in the 14th Amendment theory should make is one Jim Geraghty elucidates in the Morning Jolt:
If you start bending and twisting the interpretation of the Constitution and the definition of terms under the law to get the candidate you oppose off the ballots, then the conspiracy theorists win. Because under that scenario, you really are altering the law to ensure that a certain candidate loses. And you can’t begrudge a Trump fan for looking at all this and concluding, “They’re scared. They figured Biden would be a slam dunk for reelection, but he’s old and decrepit and people are frustrated by the cost of living and the state of the economy. They’re trying to remove Trump from the ballot because they know Trump will beat Biden.”
Jim’s contention that using the 14th Amendment in this way would embolden those in Trump’s camp who already believe the deck is stacked against the former president is right on the nose, and Democrats who support removing Trump from the ballot — if they do understand this — betray a certain cynicism, sacrificing political stability for the sake of bending (or breaking) the rules to win an extra state in an election.
That wouldn’t be the only consequence of playing games with the Constitution. A few weeks ago, after Jack Smith filed charges against Trump that played fast and loose with the legal definition of “fraud,” at least as the U.S. Supreme Court understands it, Charlie Cooke laid out the case on an episode of The Editors podcast that doing so could serve to aid Trump’s blanket claims of absolute innocence regardless of whether he actually committed the deeds for which he is charged. If a legal challenge to the indictment made its way to the Supreme Court, it’s almost certain that the Court would rule that Smith had acted outside the actual parameters of prosecuting fraud. Trump would then run around claiming he had been exonerated, even though no such thing had taken place, and his supporters would believe and promote that assertion.
When thinking about the 14th Amendment argument, my mind immediately went to Charlie’s point. If Colorado really does remove Trump from its ballot, as a lawsuit filed in the state would have, the Supreme Court would surely overturn the decision. Trump would then — much like in Charlie’s prediction — claim exoneration and parade around the country claiming the Court had cleared him of the charge of insurrection. His base would follow him, and the country would continue to plunge deeper into the multiverse of bubbles we’re experiencing now.
If Democrats really want to protect democracy as they so often claim, they’ll come out against the idea that the 14th Amendment could stop Trump. As Jim writes, the only thing Democrats can do to beat him is to convince enough voters that their alternative is better to get to 270.