Oral arguments in the Supreme Court last week have revealed particular attitudes, inclinations, and concerns that justices bring to the question of Donald Trump’s disqualification to run for president. The seventy-plus briefs filed in the case touch upon those concerns, but the sheer scale of filings obscures the main points on which the justices need to focus as they reach their conclusions.
Three factors deserve priority in their deliberations:
1) A national verdict (i.e., the second impeachment) has already been reached that Trump is disqualified under the Fourteenth Amendment standards.
2) Hundreds of individuals have already been convicted and sentenced for various anti-constitutional crimes intended to prevent the peaceful transfer of authority on January 6, 2021.
3) Trump continues to challenge the Constitution by describing those convicted of assault on the Capitol as “hostages” and pledging to pardon them if elected.
Both Chief Justice Roberts and Justice Kagan are obviously wary of the possibility that affirming the verdict of the Colorado Supreme Court would open the way to disparate state disqualifications in varied forms. Justice Kagan specifically is apprehensive that such a decision would fall short of the needed national standard.
The Court should recognize that the House and Senate votes on Trump’s second impeachment explicitly expressed the national standard, with strong majorities concluding that Trump is disqualified “to hold and enjoy any office of honor, trust, or profit under the United States.” A solid bipartisan majority of 222 Democrats and ten Republicans endorsed that language in the impeachment resolution in January 2021. An even greater majority of fifty-seven senators, including ten Republicans, voted to find Trump guilty.
Both houses’ bipartisan judgment, representing a large majority of American voters, found that Trump would “remain a threat to national security, democracy, and the Constitution…” The forty-three Republican senators who followed their leader, Mitch McConnell, in voting not guilty did so largely on the grounds that Trump was by then out of office and not subject to removal, the only punishment for impeachment. They emphasized that Trump remained vulnerable to civil and criminal court proceedings.
To the extent the Court is inclined to consider the matter “political,” timely political judgment has already been rendered by those House and Senate majorities. Sound republican principles make such action by the people’s representatives authoritative and makes superfluous the proposal to wait for voters at large to address the issue. The country would best be served by the Court taking note of that congressional verdict and ratifying it as an appropriate national standard.
The significance of the second point should be obvious. Whatever definitional issues may arise regarding the term “insurrection,” the multiple defendants convicted of multiple charges in multiple courts cannot be regarded as mere rioters. Proceedings against them have confirmed that a number of those Trump beckoned to Washington came armed and prepared for violence to disrupt the constitutional tabulation of electoral votes. In urging the crowd to go to the Capitol and “fight like hell”—even promising to join them there—Trump’s provocation violated a central provision of the statutory ban on seditious conspiracy. The boundlessness of his intentions was reflected in his musing that the mob’s call to hang the vice president might be warranted.
That statute responds directly to Justice Brett Kavanagh’s evident interest in the alleged need for Congressional action to implement disqualification. The provision outlaws the use of force “to prevent, hinder, or delay the execution of any law of the United States.” It defends the Constitution comprehensively, including both of the Fourteenth Amendment’s disqualification criteria (engaging in insurrection or giving aid or comfort to enemies of the Constitution). It is the apt tool under which the most seditious January 6 criminals have been sentenced to prison.
Yet, the third factor should be decisive in shaping the Court’s opinion. Trump’s portrayal of those already convicted for anti-constitutional conduct as “hostages” and his stated plan to pardon them validate the congressional warning that he remains a danger to the Constitution. Certainly, the justices should not be swayed by Trump’s intimidation tactics, threatening public disorder if he loses in Court. Nor should the justices he nominated view his claims that they owe him a favorable judgment as anything other than an affront to their integrity.
Trump’s past anti-constitutional conduct—conduct adjudged by bipartisan votes in Congress to be incitement of insurrection—and his continuing approbation of those convicted of assaults on the constitutional order present the basic question for the Supreme Court. Whatever the justices’ opinions of the insurrectionist charge against Trump, his repeated pledges to pardon those found guilty in the January 6, 2021, attempt to thwart the constitutional election of his successor violate the Fourteenth Amendment standard disqualifying individuals who, having sworn to support the Constitution, lend “aid or comfort to the enemies thereof.”
That is exactly what Trump is doing in his current campaign. Excusing and praising those penalized for following his leadership in the January 6 incident both condones their behavior and calls like-minded people to the former president’s cause. And there is no privilege against self-incrimination in a campaign speech.
The dismissive contention that the amendment’s language covers only “enemies” in war is not persuasive for the simple, albeit formal, reason that those disqualified after the Civil War were not, in legal terms, wartime combatants. There was no declaration of war in the struggle to preserve the Union. The Constitution faces enemies in peacetime, as well as war.
No outsider has a clear understanding of the debates now unfolding inside the Supreme Court, but justices may still welcome independent syntheses of the matters before them. We need all the help we can get to make our way through the thicket surrounding CitizenTrump’s voracious pursuit of power.
About the Author
Alton Frye, a former Senate staff director who has led many bipartisan initiatives, has served as president of the Council on Foreign Relations.
Image: Gage Skidmore.