disqualification from office

A No-Win Choice

The Washington Post recently ran a story about the 91-year old Republican woman who is a plaintiff in the Colorado case that removed Donald Trump from that state’s ballot.

In one way, the piece was just one more reminder of how very far today’s GOP is from the political party it used to be. The woman being profiled, Norma Anderson, was described as a trailblazing former GOP legislator, and she joins people like Liz Cheney and other “Never Trumpers” in reminding us that what is on display these days is a very far cry from both conservatism and what the Grand Old Party used to be.

But that article is only one commentary on a critically-important and unprecedented issue: should Trump be barred from the ballot under the very clear language of Section 3 of the 14th Amendment?

That Section reads as follows:

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.

The Guardian was among several media outlets that have reported on an amicus brief filed with the Supreme Court by some of this nation’s most eminent historians. Twenty-five historians of the civil war and Reconstruction argued in support of the Colorado decision to remove Trump from the ballot.

“For historians,” the group wrote, “contemporary evidence from the decision-makers who sponsored, backed, and voted for the 14th amendment [ratified in 1868] is most probative. Analysis of this evidence demonstrates that decision-makers crafted section three to cover the president and to create an enduring check on insurrection, requiring no additional action from Congress.”

Sean Wilentz of Princeton is a well-regarded historian who did not participate in the Supreme Court brief, but he too has dismissed arguments for allowing Trump to remain on the ballot.

“By their reasoning,” Wilentz writes, “Trump’s misdeeds aside, enforcement of the 14th amendment poses a greater threat to our wounded democracy than Trump’s candidacy. In the name of defending democracy, they would speciously enable the man who did the wounding and now promises to do much more.”…

“Whether motivated by … fear of Trump’s base, a perverted sense of democratic evenhandedness, a reflexive hostility toward liberals, or something else, [commentators who say Trump should stay on the ballot] betray a basic ignorance of the relevant history and thus a misconception of what the 14th amendment actually meant and means. That history, meanwhile, has placed the conservative members of the Supreme Court in a very tight spot.”

No kidding. And they’re ducking and weaving…

“Textualists” and “original intent” devotees on the Court are faced with unambiguous language buttressed by reams of contemporaneous evidence submitted by the historians. The hearing Thursday telegraphed the Court’s reluctance to give the Fourteenth Amendment language its obviously intended effect. The decision is likely to be another nail in the coffin of this Court’s eroding legitimacy.

It’s true that a decision following the clear Constitutional language would run the risk of unleashing a violent reaction from the populists and neo-Nazis who support Trump. Recognition of that probability has led some pundits to argue that the Court should punt–that it should “save democracy” by leaving Trump’s fate to the tender mercies of the voting public.

I understand that desire, which the Court clearly shares.

I truly believe that the likely match-up between Biden and Trump will result in a massive repudiation of Trump and his cult–that Trump’s intensifying and increasingly obvious mental decline, on top of his ignorance, narcissism and generally repulsive persona will lead to a massive rejection of the GOP at the polls. (Discount the polling averages that seem to show Trump even with or defeating Biden; as several scholars have noted, those averages include a large number of low-quality, partisan polls with which GOP propagandists have “flooded the zone.”)

It would be far more satisfying to defeat Trump at the polls, but America is facing a crucial test of our commitment to the rule of law. Are we, as John Adams famously proclaimed, a “nation of laws, not men”? Or are we a nation of scofflaws, ready to abandon rules when we find them inconvenient or unpopular?

The Court appears ready to place us among the scofflaws.

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The Wages Of Cowardice

What explains the chaos/civil war in the GOP?

I’ll admit that I haven’t always been a Mit Romney fan–I really didn’t pay much attention to him until his infamous “47% “takers” remark, and that gave me a very negative opinion of him. (I’m also not a fan of the “makers versus takers” view of the world.)

That said, he has steadily risen in my opinion, thanks to his vote to impeach Trump, and–along with his announcement that he will not run for a second Senate term– his willingness to be honest about the current GOP.

Romney has said publicly what most observers have long surmised–that the more rational members of the Senate’s Republican caucus share his disdain for Trump. They recognize Trump’s profound ignorance. They laugh at his ungrammatical pronouncements. They shake their heads over his “policy” choices.

But not in public.

Rarely have We the People been treated to a display of utter cowardice equal to that we are currently experiencing. As David French has written in the New York Times, the Republican Senators who refused to do their constitutional duty and vote to impeach

punted their responsibilities to the American legal system. As Mitch McConnell said when he voted to acquit Trump, “We have a criminal justice system in this country.” Yet not even a successful prosecution and felony conviction — on any of the charges against him, in any of the multiple venues — can disqualify Trump from serving as president. Because of G.O.P. cowardice, our nation is genuinely facing the possibility of a president’s taking the oath of office while also appealing one or more substantial prison sentences.

The GOP appears to be stuck with Trump, a candidate recently–and accurately– described by Jennifer Rubin as “unhinged, vengeful, incoherent, dangerous and neo-fascist.”)

French began his column by agreeing with a recent, densely-argued law review article concluding that the clear language of the 14th Amendment–if applied–disqualifies Trump (or any other traitor) from holding further public office. He then acknowledged the realities of trying to enforce that disqualification–and the likelihood that the current Supreme Court would refuse to intervene if the attempt were to be made.

While I believe the court should intervene even if the hour is late, it’s worth remembering that it would face this decision only because of the comprehensive failure of congressional Republicans. Let me be specific. There was never any way to remove Trump from American politics through the Democratic Party alone. Ending Trump’s political career required Republican cooperation, and Republicans have shirked their constitutional duties, sometimes through sheer cowardice. They have punted their responsibilities to other branches of government or simply shrunk back in fear of the consequences…

And then, of course, there’s Congress, where GOP members are in thrall to their crazy caucus.

For many of them, the answer lies in raw fear. First, there is the simple political fear of losing a House or Senate seat. In polarized, gerrymandered America, all too many Republican politicians face political risk only from their right…

Mitt Romney has pointed to a different fear: physical harm to a lawmaker’s person or family. The Trumpist cult that now controls what was once a political party is capable of real violence, and several elected officials are reacting to explicit threats from members of that cult.

The problem is, appeasement never works, as Kevin McCarthy now understands. Cowardice simply encourages the mob mentality that animates today’s GOP. As French reminds readers,

A fundamental reality of human existence is that vice often leaves virtue with few good options. Evil men can attach catastrophic risks to virtually any course of action, however admirable. But we can and should learn lessons from history. George Washington and Abraham Lincoln, two of our greatest presidents, both faced insurrectionary movements, and their example should teach us today.

As French says, people of character and conviction once inhabited the American political class, and those people gave us the tools to defend the American experiment. He says that “All we need is the will.”

We won’t have “the will,” however, until and unless we elevate better people to office. In Indiana, we have empowered a number of people whose intellectual and moral deficits and lack of concern for the Constitution and the public good make them utterly unfit for any public office.

We have our smarmy, “me myself and I” actors (Rokita, Braun), our looney-tunes, bigoted far-Right culture warriors (Banks) and the cowards who appear to know better but have thus far been unwilling to act on what they know (Young). There are many others. None of them will step up to the plate and impose accountability.

Bottom line: we have to replace them.

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