So many of us have deep within ourselves the hope that the legal system, for all its wheezing and groaning turtle-like momentum, will solve perhaps the nation’s most crucial election by ruling that Trump is barred from running. Most of these people are Democrats who see an end to Trump’s candidacy by the Supreme Court potentially ruling that the 14th Amendment prohibits him from running for office because he engaged in an insurrection. That question will be answered fairly quickly, and even though I have a horse in the race (I am part of a group of attorneys who have filed briefs advocating such a result), the arguments are both complex and vexing in a democracy where we all agree that people should generally be elected or rejected by voters. I think those of us who are legally fighting to keep him off the ballot are right on the law, but that is not something I intend to argue here. My concern is what seems to be the abject stupidity and laziness of the American voter, who doesn’t exercise his or her right to vote, the most fundamental right in a democracy.
I remember after the election of Trump there was such a gnashing of teeth and rending of clothes by the Democrats as to almost defy my imagination. What did these people expect? They got what they paid for. If we are dumb enough to elect some remarkably inept individuals, that is our fault, by either not voting or not being prescient enough to determine the rogues in advance. (Of course, the main difference with Hillary’s constituency was that no one yelled for four years that the election was stolen, and no one fomented an insurrection to overturn the results).
My European friends and colleagues were amazed that we elected Bush Jr. a second time, after it was clear that he lied about the basis for the war, which changed the course of American Mid-East policy and which has resulted in the disastrous, on-going conflicts in the region. They were right, we knew exactly what he did, yet we still elected a knowingly flawed, inept president.
Still, the best example of taking a wrong electoral turn may well be the vote of the United Kingdom to exit the European Union. I don’t think there is a doubt that most citizens there rue that decision (a large poll in July 2023 showed that 57 percent felt it was a mistake, and 63 percent believe Brexit has been a failure). Younger citizens especially loved feeling “European,” with the ability to study, work, and move freely about the EU. It is estimated that about 73 percent of those under 25 voted to remain, and 63 percent of the cohort went to the polls. The voting was skewed by age, with the three youngest groups of voters opposed to leaving, and the three oldest voting in favor of Brexit. They got what they voted for.
The Supreme Court will have two cases which will be dispositive of this election, the one to keep Trump off the ballot and the other to determine if he has immunity from prosecution. My belief is that they will rule that he has no immunity and may be tried in his varied criminal cases. Polls show that many voters will not vote for him if he is convicted of a crime.
The obvious result of this will be his attempts to delay any trial, and delay until after he is possibly elected any appeal of a conviction. He is entitled—as anyone is—to the full judicial process, and if he is elected after a federal criminal conviction, he will probably seek to pardon himself. (He could not attempt to pardon himself after a state conviction, and the ability to pardon himself in a federal case is certainly up for debate.)
The other case concerning the prohibition of his candidacy under the 14th Amendment is approaching resolution fairly quickly. Without going into details, I suggest we all pay attention to the reporting on the various arguments. The nit-picking about how his oath does not specifically fall under the statute is a loser for him, but there are many more issues in this once-in-240-years case. (Just briefly, the arguments boil down to the definition and way to determine what an insurrection is, whether he received due process in fact findings in Colorado, state power over their elections, and myriad other questions).
Overcoming all of the arguments is that if you play a game, you are bound by the rules. I never had any patience for Hillary’s supporters claiming that she really won since she won the popular vote but lost the electoral college. The proof of the pudding was who was sitting in the White House.
As I have told lots of young lawyers, “don’t fight the problem.” Here, the problem is the 14th Amendment and the subsequent case law, and that won’t go away. If you run for president, you can’t complain that the rules are unfair; you toss your hat into the ring knowing what you are facing.
The analysis in the court briefs, especially those by some of the most conservative retired judges, law professors, and scholars, shows that the textual language and the case law is clear, and that there is no interpretation that can alter the facts and relevant law. Our conservative, originalist court, in particular, should bar his candidacy.
OK, that said, the concern is that the presidency will not be decided by a vote of the people, but by nine unelected judges. This happened once before in Bush v. Gore, and the republic did not collapse because the litigants were willing to abide by the legal process. Clearly, that is not something Trump has been willing to do for the last four years, claiming still that the election was stolen, even after his 61 election fraud cases were denied by elected or appointed federal and state judges throughout the country, both at the trial and appellate level, including the Supreme Court. (Most remarkable is that none of his cases required a factual hearing, since there was never any evidence to justify his claims.)
What will the Supreme Court do? There has been lots of discussion among counsel that the court will be hesitant to deny one half of the population an opportunity to vote for their preferred candidate. Since the matter is unique, there are lots of opportunities for the court to craft a decision allowing him to stay on the ballot. We will see soon, but my belief is that if you play the game, you are compelled to play by the rules.
