Should a Court or Voters Judge Trump?
there’s a lingering controversy over whether Trump led an insurrection that would disqualify him from being on ballots. My colleague Charles Madigan and I disagree about the situation.
Jim: As you know, Charlie, I think the Colorado Supreme Court made the right call when it said Donald Trump shouldn’t be on the ballot for president in the election that starts Monday. You disagree and say voters should decide his fate. The issue is now before the U.S. Supreme Court. But we didn’t wrestle with the thorny legal issue facing the judges on the High Court: Did Trump engage in an insurrection when he urged his followers to march on the nation’s capital on January sixth, or was he merely encouraging them to exercise their right to free speech?
Exactly what happened on January sixth and the meaning of Section Three of the Fourteenth Amendment to the U.S. Constitution will be crucial elements in answering those questions. Stripping away the legalese, Section Three says that no person can hold any national or state position of public trust if they took an oath of office and then “engaged in insurrection or rebellion against” the Constitution or gave “aid or comfort" to such rebellious efforts. I don’t think there’s much of an argument that what happened when Trump’s supporters stormed the Capitol amounted to a violent insurrection. The congressional investigation of the attack made that clear. Moreover, Trump, at a minimum, clearly gave them “aid and comfort.”
photo by Little Plant
I’m not alone in saying Trump’s actions disqualify him and that he should be kicked off the ballot. That’s what the Colorado Supreme Court said. Even legal scholars who are members of the conservative Federalist Society, such as William Baude of the University of Chicago, and Michael Stokes Paulson of the University of St. Thomas, agree. No matter how much Trump tries to weasel out of the controversy, he broke the law and should pay for his crimes just like the insurrectionists who prompted legislators to write Section Three: Confederate soldiers who rebelled against the United States in the Civil War. Trump doesn't deserve the right to run for the highest office in the land. He gave that away on January sixth.
Charlie: It would have been very interesting to see what Trump supporters would have said about Jefferson Davis, the president of the Confederacy. Was he just exercising freedom of speech in trying to overthrow the government? Was the Confederate army? Hell, no. Nonetheless, the consequences of bringing Davis to trial were vast and unpredictable. All of that was resolved by an amnesty declaration by President Andrew Johnson, perhaps our worst president. It freed Davis and Confederate General Robert E. Lee and the Confederate army of treason charges. So, history may not be such a clear indicator of what should happen to Trump’s chances.
Trump is in the position of a man, who, caught by his wife with his mistress, shouts, “Are you going to believe what you think you saw, or are you going to believe me?” I think I know what I saw on January sixth and so does everyone else. There is a jury at hand to decide this Trump question: it’s the electorate next November. Quibbling over the definition of insurrection is inevitable because that’s what politics, and perhaps the Supreme Court, does. Remember, a lot of Republicans are calling January sixth nothing more than a friendly visit to the capitol during which cops and undercover FBI guys provoked a riot. No, it was murderous assault on our democracy. I think the courts have a role here. That is to send Trump to prison. But that’s not enough.
Trump should face the electorate directly to pay the piper for the very clear role he played in the mess. On an added note, people who are blathering about the potential for civil war over this pretentious gas bag know nothing about history and nothing about war. You attack the U.S. government with war in mind, there are 452,689 soldiers in the Army, 5,463 helicopters., 5,189 fighter jets in the U.S. Air Force, 180,958 Marines, sailors all over the world, and lots of spies and undercover pros to unleash. How much of a civil war do you think we need to offset those odds? The last one involved slavery or not. Perhaps 700,000 people died in that struggle. I don’t think Trump is the same kind of draw.
Jim: I respectfully disagree, Charlie. We shouldn’t have to wait for the electorate to act. The courts can settle the issue much more quickly. We have more important things to worry about than staging an election so Donald Trump can be judged by voters. We must invest our time in problems far more serious than Trump. He's a distraction. We see democracy under attack around the globe with a faltering war in Ukraine, an evolving regional war in the Middle East, a threatening problem between China and Taiwan, the cold snap you are suffering because of climate change, and a rambunctious minority controlling the agenda of one of our major political parties. Republicans, once again, are threatening to shut down the government at a time of global crisis. Why waste our time dealing with Donald Trump and his lies in a protracted election? He had his chance with voters, they defeated him, and he wouldn't accept their verdict. Then he fomented a rebellion in violation of Section Three.
The courtroom is the place to dispatch with the issue quickly and decide the fate of a man who refuses to live by the rules of our democracy. David French, the astute legal observer at The New York Times, points out that the standards of proof for Trump’s failure to obey the law are not the same for someone accused of a crime. Violating Section Three doesn't carry a criminal penalty. He won’t go to jail if he’s knocked off the ballot. He forfeited his right to run for president when he, at a minimum, gave “aid and comfort” to a rebellion. This isn’t about “quibbling” over a definition of insurrection; it is a test of our commitment to the Constitution, our democracy’s sacred document.
Just look at what’s happening in Iowa, which is about as representative of America as Cuba. A political party dominated by religious extremists who believe in book banning will probably tap him Monday as the Republican front-runner. Is that our jury? Sorry, I’d rather have a court schooled in the rule of law decide his fate. We are talking about a constitutional issue that could have serious future ramifications. The Supreme Court weighed in on election issues before when they ruled in favor of George Bush over Al Gore. They can do it again. I do agree with you on one point: we won't have a civil war. We might start a painful but needed return to civil society.
Charlie: Well, James, women who need abortions would probably not agree with you on the wisdom of the High Court. And, by the way, some Court members have the ethics of a pack of ambulance chasers. I think you are 100 percent correct about the issues the nation faces at home and around the world. Ukraine is in trouble in its war with Russian invaders, and we are the only nation that has the deep pockets to give them at least a better chance at winning. That’s just one of them. You are right, Iowa looks only like Iowa, not like the United States at all. Given the weather, that “caucus” system is likely to make its choice based on who has the warmest down outerwear to get to the caucus meetings. But that’s not what I meant by “election.” I meant the real big election in November when CNN will have its fancy map and chatty observers and The New York Times will send its dedicated and stunning team of reporters into the field to ask the question: “How the hell did that happen?!” no matter the outcome. That election, that’s the one I mean. I agree with you that the Republican party is pushed by a rabid collection of ideologues who do not have the nation’s interest at heart. Maybe the voters will handle that down the ticket.
And okay, I will be the first to say “Hosanna!” if the court stops this terrible man from reaching the ticket, and I hope you are correct. But I still like elections a lot better. As for a civil war, we agree on that, but who knows what will happen in a nation where crazy people shoot children in elementary schools, high schools and colleges?
—James O’Shea and Charles Madigan
James O’Shea is a longtime Chicago author and journalist who now lives in North Carolina. He is the author of several books and is the former editor of the Los Angeles Times and managing editor of the Chicago Tribune. Follow Jim’s Five W’s Substack here.
Charles Madigan is a writer and veteran foreign and national correspondent for UPI and the Chicago Tribune, where he also served as a senior writer and editor. He examines news reporting, politics and world events.