It’s not a political problem. It’s a legal problem. He broke the law, he incited an attack on our Capitol and our Constitution. He refused to implement his sworn oath to protect US from domestic terrorists. This is not the time to be chicken or “soft on crime.” If the US Supreme Court gives him a pass, then and only then will this be a political problem. Americans will vote. Love will trump hate.
Sounds like we're back to arguing whether Trump should be allowed to get a free ride, or instead be prosecuted for his crimes.
I agree with people like Damon that we need a criminal conviction first before we start keeping people off ballots, but I'm pretty confident that The Best Supreme Court that Money Can Buy will take the position that eviscerates the 14th Amendment [they only like the pro-slavery part of the Constitution] and we'll be back where we started.
Its nice that we still have romantics who think the Rule of Law should govern us.
No argument the decision itself will unlikely change outcome, inflame Trump base and be a talking point to his tiresome "witch-hunt" powerpoint.
But it also has the same and opposite effect on opposition voters, fund raisers and Biden speech writers.
Taking it to the people is the only means, no doubt, but it’s a flawed argument that the law of the Constitution should not be tested when it speaks so plainly. The fact that the document lacks an explicit enforcement mechanism has been overcome many times before based on an equitable argument that every right implies a remedy. And yes, whether a court does so depends on its political makeup, not intellectual firepower, the Voting Rights Act being a prime example, with private actions formerly embraced, now abhorred.
I think the Colorado decision is meaningful because of the political composition of those who brought it, including a prominent Republican. It likely speaks to moderate Republicans and independents and,frankly, is a great example for history (our grandchildren) of a thoughtful effort to grapple both morally and legally with an existential issue, one far more morally important than even abortion, immigration, Foreign policy or which GOP candidate is the lesser of two weevils. Forgive the reference to Master and Commander.
IMO, any republican who supports the indicted former 45th president is a MAGA republican.
Nevertheless, you have precisely stated (your last reply) why America needs a supreme legal opinion registered in this matter. The Colorado Supreme Court provides that first step.
America needs a Supreme Court ruling. That’s next. The rule of law will trump hate, IMO.
FYI, New Mexico’s Supreme Court tested the U.S. Constitution’s 14th Amendment. The 14th rule won. A county commissioner was remove from office (on appeal) and barred from running again.
The courts may be wrong in barring Trump from qualification to run for president. But if you leave it up to the voters, Trump will be our next president/dictator. Our country is in the midst of a democracy problem and the voters won't know what that means until after Trump is elected. Then it will be too late. We will have a dictator rather than a president and there will be no one to stop him. If the courts don't stop him, no one will until after the damage is done.
Well it's easy to see 'politics' and bad political fallout in this event; but I suggest it's probably not useful or right, except that a politician is the loser in the dispute, and he himself is probably a lawbreaker.
The use of law enforcement against lawbreakers is sometimes discretionary; however, avoidance of applying law is fraught in all cases involving Donald Trump. He's now vowing to gut the independent judiciary, if you hadn't noticed. So I must respectfully disagree with the characterization of the suits as '[only an optional] legal remedy for a political problem'.
The only thing 'problematic' about the disqualification, is that its grounds have never had to be used before; of course, there's never been as gross a scofflaw in the highest office of the land.
However, there'd be no such thing, in a land where rule of Law obtains, as any 'political legitimacy' that is at the same time... illegal. That wouldn't work. In the broader arena, to state the obvious, that's why written constitutions and codes exist, and why all *political officers* are required to swear oaths of loyalty, not to My Constituency, but to The Constitution.
Ironically, very ironically, Trump's political career began with his campaign of innuendo against Barack Obama's birth certificate. All innuendo, zero evidence, and now the Maga rail against someone filing a legal argument with meticulous documentation, against Trump's eligibility, at a competent court of Law. That's a howling rhetorical point to make, and should be made.
Second, the Colorado suit was filed by registered Republicans and 1 independent. No Democrat involved. Thirdly, the suit is a commonplace challenge to the eligibility of a candidate for a ballot place. Such challenges are filed routinely on technical grounds. Just because a serial lawbreaker in this event has once been a Chief Executive doesn't make any claims against his eligibility "too political."
I hear your fears and have the same ones, and I've heard the legal and political arguments and there is obviously a lot of room for debate. I come out in the other side. As you say, there is already a serious legitimacy problem in this country, but your focus is on the legitimacy problem as seen by Trump supporters, ignoring the one as seen by those who view Trump as a serious threat to our nation. There is an expectation that we focus on the needs of MAGA and adjacent and expect all others to be the adults in the room and suck it up until the tantrum goes away. The problem is, the tantrum will never go away no matter what you do. Meanwhile, the adults in the room are just big children also with their own needs.
If the option was to have this legitimate constitutional question brought to the forefront of public debate just be swept under the rug in order to attempt to placate the unplacatable Trump fans, how would you explain that to those who believe in the "rule of law?" The option would be to say, yes that's a legitimate question but Trump is going to cry about it and will probably get more popular. I would argue that this is a great way to lead to further disenchantment of Democraticl voters.
I apologize for oversimplifying any contrary arguments, but typing on the phone leaves much to be desired. We have no good options, but in my opinion, the worst option is to attempt to give Trump what he wants.
Damon's position here is consistent with his view that Trump should not have been indicted for criminal charges because Trump's populist tactics weaponize the Rule of Law in a manner that undermines our political system. Therefore, the rule of law can not be used against Trump, because it will make him stronger. While those are not Damon's exact words, it is how I read and interpret them. Having said that, I do agree that trying to apply the 14th Amendment is a political mistake and I hope SCOTUS rules 9-0 against it (ideally the same week they issue another 9-0 opinion striking down Trump's claims of presidential immunity. It would be a strong sign SCOTUS can be united and can be even handed.)
But I have a real concern about Damon's argument that politics must trump process, i.e. the Rule of Law. As I commented before--and may ask this direct question in the next call for questions--practicing politics within the framework of the Rule of Law is what a liberal society IS. Making political decisions outside the framework of the Rule of Law creates either an authoritarian dictatorship or anarchy. I can not comprehend what kind of government we'd have if, as Damon clearly argues, the Rule of Law has to be sidelined every time a dangerous populist movement scream "tyranny". This argument is akin to surrendering 200 plus years of democratic republicanism because we are afraid that populists will destroy the Republic, if we duly apply the rules of our 200 plus years of tradition.
So while I do agree that the politics of the Colorado decision is bad, how can I criticize those who sued? The principle of blocking Trump was first supported by conservative jurists at the Federal Society and blessed by the most imminent of conservative scholar (Judge Luttig). Who am I to say they should not sue? This is NOT something imagined by liberal Trump haters, but bonifide conservatives. Are we to deny people the right to enforce the clear text of the 14th Amendment?
Where Damom and I most disagree about is how do we want the Republic to die. Of course neither of us want that and we are both committed to stopping the forces that are destroying our political system. Damon wants to save the Republic by allowing political factors to triumph over the Rule of Law. In my view, we can't retain our republican experiment by letting political factors trump the Rule of Law. I'd rather fight using the basic tools that make who we are: the Rule of Law. If in fact this allows the populist forces to use this principle as a cudgel to destroy the system, well, at least we went down fighting instead of surrendering.
1/6 wasn't an insurrection because a) it wasn't or b) these were well-meaning patriots or c) BLM's just as bad, go arrest them.
The people have a right to whichever candidates they may want, that's democracy.
Holding Trump accountable to the law only inflames his supporters all the more and confirms their suspicions about the illegitimacy of the law.
As for the "legitimacy" argument, I can't but recall Lincoln at Cooper Union: "But you will not abide the election of a Republican president! In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, 'Stand and deliver, or I shall kill you, and then you will be a murderer!'"
While I always hated conservatives arguing "we are not a democracy, we are a Republic" when debating the Electoral College, in this case I think it's very appropriate.
Damon argues that only the people should be deciding who the President should be. But that kind of direct democracy is not part of our system, is it? We have a Constitution--a rule book--that says people younger than 35 can't run for office or they must be born a citizen. The voters do not have the right to vote for someone younger than 35, yet by Damon's logic, they should if there is a huge groundswell of populist support. But just as people under 35 can't run for President, the Constitution prohibits people who took an oath to protest to the Constitution and have engaged in insurrection against the US government to be ineligible to run. That's what the text says. And we have a process of multiple checks and balances (in this case within the judiciary) to evaluate the merits of the current situation. That's what republic's do and we are a Republic and not an unfettered democracy.
Damon, I usually think you're right about 99% of the time but on this one we have to part ways. I don't think disqualifying Trump is any more undemocratic than not allowing 24-yr olds or non-citizens to run for the Presidency.
And Trump's voters are going to think the game is rigged no matter what the Court does - they'll think it's rigged whether he wins or not. There is no way to satisfy the pathologies of MAGA short of surrender.
As I understand it the Constitution is both a legal and "political" document so I have no problem invoking Article 3 as any more or less political than impeachment. If Article 3 is self-enforcing and it seems to me logical that it is then we really have no choice in the matter.
A question in response to your CNN article, specifically to the statement that "Democracy cannot be vindicated by abrogating democracy. "
If the Constitution is a "We the People" document structuring our political processes, how can officially interpreting the 14th amendment (or any other part of the Constitution) be defined as "abrogating democracy? "
I understand and mostly agree with you political analysis of the ramifications of the Colorado decision, but I don't think such an analysis justifies the "abrogating democracy" claim you and many others make.
Normally I agree with everything you say, Mr Linker. I have the deepest respect for your perspective, your values, your knowledge and insight. On this matter of the Colorado SC’s ruling, I must, for the first time, disagree. The 14th Amendment is clear, and the unanimous finding that Trump fomented an insurrection against Congress, and that he is indeed an officer of the government, is dispositive. If Trump is an exception to the Rule of Law, then everything Americans fought for and won in the War of Independence and in the Civil War is in vain. There are indeed powerful people and groups who disdain the democratic experiment and seek an oligarchic government -- a coalition of Nietzschean intellectuals, the plutocratic super-rich, and their restive and credulous followers. If we abandon the Rule of Law to these people, all is lost.
Yes, it is a political problem which, as noted in Rucho v Common Cause: "Partisan gerrymandering claims present political questions beyond the reach of the federal courts." SCOTUS has been attempting to avoid questions about State's operation of elections as a Federal issue like it was the Blue Lagoon in Iceland and presenting this Colorado case puts all this mess back into a Federal bailiwick. Not being a citizen of CO, I'm not sure if registered members of a party had authority to contest a candidate before even attaining nomination in a primary, but I have to assume since the court heard it, they do. If that is so, then SCOTUS should have no option other than to return it back as a State issue that is "beyond the reach of the federal courts".
I think Trump is both a political problem and a legal problem. The CO SCOTUS got (imho) the legal part right.
If Trump shot your mother on live TV, would you guys still say that he should be able to run because, politics? The man is a narcissistic criminal sociopath. Someone needs to put an end to this existential threat to our nation, somehow. This court had the guts to try. By following the law, no less.
It’s not a political problem. It’s a legal problem. He broke the law, he incited an attack on our Capitol and our Constitution. He refused to implement his sworn oath to protect US from domestic terrorists. This is not the time to be chicken or “soft on crime.” If the US Supreme Court gives him a pass, then and only then will this be a political problem. Americans will vote. Love will trump hate.
Sounds like we're back to arguing whether Trump should be allowed to get a free ride, or instead be prosecuted for his crimes.
I agree with people like Damon that we need a criminal conviction first before we start keeping people off ballots, but I'm pretty confident that The Best Supreme Court that Money Can Buy will take the position that eviscerates the 14th Amendment [they only like the pro-slavery part of the Constitution] and we'll be back where we started.
Its nice that we still have romantics who think the Rule of Law should govern us.
Thanks for your good work.
No argument the decision itself will unlikely change outcome, inflame Trump base and be a talking point to his tiresome "witch-hunt" powerpoint.
But it also has the same and opposite effect on opposition voters, fund raisers and Biden speech writers.
Taking it to the people is the only means, no doubt, but it’s a flawed argument that the law of the Constitution should not be tested when it speaks so plainly. The fact that the document lacks an explicit enforcement mechanism has been overcome many times before based on an equitable argument that every right implies a remedy. And yes, whether a court does so depends on its political makeup, not intellectual firepower, the Voting Rights Act being a prime example, with private actions formerly embraced, now abhorred.
I think the Colorado decision is meaningful because of the political composition of those who brought it, including a prominent Republican. It likely speaks to moderate Republicans and independents and,frankly, is a great example for history (our grandchildren) of a thoughtful effort to grapple both morally and legally with an existential issue, one far more morally important than even abortion, immigration, Foreign policy or which GOP candidate is the lesser of two weevils. Forgive the reference to Master and Commander.
IMO, any republican who supports the indicted former 45th president is a MAGA republican.
Nevertheless, you have precisely stated (your last reply) why America needs a supreme legal opinion registered in this matter. The Colorado Supreme Court provides that first step.
America needs a Supreme Court ruling. That’s next. The rule of law will trump hate, IMO.
FYI, New Mexico’s Supreme Court tested the U.S. Constitution’s 14th Amendment. The 14th rule won. A county commissioner was remove from office (on appeal) and barred from running again.
The courts may be wrong in barring Trump from qualification to run for president. But if you leave it up to the voters, Trump will be our next president/dictator. Our country is in the midst of a democracy problem and the voters won't know what that means until after Trump is elected. Then it will be too late. We will have a dictator rather than a president and there will be no one to stop him. If the courts don't stop him, no one will until after the damage is done.
Well it's easy to see 'politics' and bad political fallout in this event; but I suggest it's probably not useful or right, except that a politician is the loser in the dispute, and he himself is probably a lawbreaker.
The use of law enforcement against lawbreakers is sometimes discretionary; however, avoidance of applying law is fraught in all cases involving Donald Trump. He's now vowing to gut the independent judiciary, if you hadn't noticed. So I must respectfully disagree with the characterization of the suits as '[only an optional] legal remedy for a political problem'.
The only thing 'problematic' about the disqualification, is that its grounds have never had to be used before; of course, there's never been as gross a scofflaw in the highest office of the land.
However, there'd be no such thing, in a land where rule of Law obtains, as any 'political legitimacy' that is at the same time... illegal. That wouldn't work. In the broader arena, to state the obvious, that's why written constitutions and codes exist, and why all *political officers* are required to swear oaths of loyalty, not to My Constituency, but to The Constitution.
Ironically, very ironically, Trump's political career began with his campaign of innuendo against Barack Obama's birth certificate. All innuendo, zero evidence, and now the Maga rail against someone filing a legal argument with meticulous documentation, against Trump's eligibility, at a competent court of Law. That's a howling rhetorical point to make, and should be made.
Second, the Colorado suit was filed by registered Republicans and 1 independent. No Democrat involved. Thirdly, the suit is a commonplace challenge to the eligibility of a candidate for a ballot place. Such challenges are filed routinely on technical grounds. Just because a serial lawbreaker in this event has once been a Chief Executive doesn't make any claims against his eligibility "too political."
I hear your fears and have the same ones, and I've heard the legal and political arguments and there is obviously a lot of room for debate. I come out in the other side. As you say, there is already a serious legitimacy problem in this country, but your focus is on the legitimacy problem as seen by Trump supporters, ignoring the one as seen by those who view Trump as a serious threat to our nation. There is an expectation that we focus on the needs of MAGA and adjacent and expect all others to be the adults in the room and suck it up until the tantrum goes away. The problem is, the tantrum will never go away no matter what you do. Meanwhile, the adults in the room are just big children also with their own needs.
If the option was to have this legitimate constitutional question brought to the forefront of public debate just be swept under the rug in order to attempt to placate the unplacatable Trump fans, how would you explain that to those who believe in the "rule of law?" The option would be to say, yes that's a legitimate question but Trump is going to cry about it and will probably get more popular. I would argue that this is a great way to lead to further disenchantment of Democraticl voters.
I apologize for oversimplifying any contrary arguments, but typing on the phone leaves much to be desired. We have no good options, but in my opinion, the worst option is to attempt to give Trump what he wants.
Damon's position here is consistent with his view that Trump should not have been indicted for criminal charges because Trump's populist tactics weaponize the Rule of Law in a manner that undermines our political system. Therefore, the rule of law can not be used against Trump, because it will make him stronger. While those are not Damon's exact words, it is how I read and interpret them. Having said that, I do agree that trying to apply the 14th Amendment is a political mistake and I hope SCOTUS rules 9-0 against it (ideally the same week they issue another 9-0 opinion striking down Trump's claims of presidential immunity. It would be a strong sign SCOTUS can be united and can be even handed.)
But I have a real concern about Damon's argument that politics must trump process, i.e. the Rule of Law. As I commented before--and may ask this direct question in the next call for questions--practicing politics within the framework of the Rule of Law is what a liberal society IS. Making political decisions outside the framework of the Rule of Law creates either an authoritarian dictatorship or anarchy. I can not comprehend what kind of government we'd have if, as Damon clearly argues, the Rule of Law has to be sidelined every time a dangerous populist movement scream "tyranny". This argument is akin to surrendering 200 plus years of democratic republicanism because we are afraid that populists will destroy the Republic, if we duly apply the rules of our 200 plus years of tradition.
So while I do agree that the politics of the Colorado decision is bad, how can I criticize those who sued? The principle of blocking Trump was first supported by conservative jurists at the Federal Society and blessed by the most imminent of conservative scholar (Judge Luttig). Who am I to say they should not sue? This is NOT something imagined by liberal Trump haters, but bonifide conservatives. Are we to deny people the right to enforce the clear text of the 14th Amendment?
Where Damom and I most disagree about is how do we want the Republic to die. Of course neither of us want that and we are both committed to stopping the forces that are destroying our political system. Damon wants to save the Republic by allowing political factors to triumph over the Rule of Law. In my view, we can't retain our republican experiment by letting political factors trump the Rule of Law. I'd rather fight using the basic tools that make who we are: the Rule of Law. If in fact this allows the populist forces to use this principle as a cudgel to destroy the system, well, at least we went down fighting instead of surrendering.
I've seen several arguments thus far:
Trump isn't a convicted insurrectionist (yet).
1/6 wasn't an insurrection because a) it wasn't or b) these were well-meaning patriots or c) BLM's just as bad, go arrest them.
The people have a right to whichever candidates they may want, that's democracy.
Holding Trump accountable to the law only inflames his supporters all the more and confirms their suspicions about the illegitimacy of the law.
As for the "legitimacy" argument, I can't but recall Lincoln at Cooper Union: "But you will not abide the election of a Republican president! In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, 'Stand and deliver, or I shall kill you, and then you will be a murderer!'"
While I always hated conservatives arguing "we are not a democracy, we are a Republic" when debating the Electoral College, in this case I think it's very appropriate.
Damon argues that only the people should be deciding who the President should be. But that kind of direct democracy is not part of our system, is it? We have a Constitution--a rule book--that says people younger than 35 can't run for office or they must be born a citizen. The voters do not have the right to vote for someone younger than 35, yet by Damon's logic, they should if there is a huge groundswell of populist support. But just as people under 35 can't run for President, the Constitution prohibits people who took an oath to protest to the Constitution and have engaged in insurrection against the US government to be ineligible to run. That's what the text says. And we have a process of multiple checks and balances (in this case within the judiciary) to evaluate the merits of the current situation. That's what republic's do and we are a Republic and not an unfettered democracy.
“This isn’t politics. It’s the Constitution that will disqualify the former president if he’s disqualified,” says J. Michael Luttig.
“The former federal judge help craft the strategy that resulted in Colorado blocking Trump from the ballot.”
Damon, I usually think you're right about 99% of the time but on this one we have to part ways. I don't think disqualifying Trump is any more undemocratic than not allowing 24-yr olds or non-citizens to run for the Presidency.
And Trump's voters are going to think the game is rigged no matter what the Court does - they'll think it's rigged whether he wins or not. There is no way to satisfy the pathologies of MAGA short of surrender.
As I understand it the Constitution is both a legal and "political" document so I have no problem invoking Article 3 as any more or less political than impeachment. If Article 3 is self-enforcing and it seems to me logical that it is then we really have no choice in the matter.
A question in response to your CNN article, specifically to the statement that "Democracy cannot be vindicated by abrogating democracy. "
If the Constitution is a "We the People" document structuring our political processes, how can officially interpreting the 14th amendment (or any other part of the Constitution) be defined as "abrogating democracy? "
I understand and mostly agree with you political analysis of the ramifications of the Colorado decision, but I don't think such an analysis justifies the "abrogating democracy" claim you and many others make.
michael
Normally I agree with everything you say, Mr Linker. I have the deepest respect for your perspective, your values, your knowledge and insight. On this matter of the Colorado SC’s ruling, I must, for the first time, disagree. The 14th Amendment is clear, and the unanimous finding that Trump fomented an insurrection against Congress, and that he is indeed an officer of the government, is dispositive. If Trump is an exception to the Rule of Law, then everything Americans fought for and won in the War of Independence and in the Civil War is in vain. There are indeed powerful people and groups who disdain the democratic experiment and seek an oligarchic government -- a coalition of Nietzschean intellectuals, the plutocratic super-rich, and their restive and credulous followers. If we abandon the Rule of Law to these people, all is lost.
Yes, it is a political problem which, as noted in Rucho v Common Cause: "Partisan gerrymandering claims present political questions beyond the reach of the federal courts." SCOTUS has been attempting to avoid questions about State's operation of elections as a Federal issue like it was the Blue Lagoon in Iceland and presenting this Colorado case puts all this mess back into a Federal bailiwick. Not being a citizen of CO, I'm not sure if registered members of a party had authority to contest a candidate before even attaining nomination in a primary, but I have to assume since the court heard it, they do. If that is so, then SCOTUS should have no option other than to return it back as a State issue that is "beyond the reach of the federal courts".
I think Trump is both a political problem and a legal problem. The CO SCOTUS got (imho) the legal part right.
If Trump shot your mother on live TV, would you guys still say that he should be able to run because, politics? The man is a narcissistic criminal sociopath. Someone needs to put an end to this existential threat to our nation, somehow. This court had the guts to try. By following the law, no less.