E.J Dionne, of The Washington Post
The Washigton Post's E.J. Dionne Jr., one of our top political columnists for more than 30 years, long has been one of my favorite reads. In his latest piece, Dionne shows what can happen when a smart person, who cares about our democracy and the rule of law, gives serious thought to the idea that Donald Trump should be removed from the presidential ballot for his actions as an insurrectionist on Jan. 6, 2021. Dionne once was suspect of the idea that Trump was disqualified under Section 3, 14th Amendment of he U.S. Constitution. But after fully applying his considerable knowledge and intellect to the issue, Dionne changed his mind.
Maybe the justices of the U.S. Supreme Court (SCOTUS) should try a similar process because yesterday's opening arguments in the case of Trump v. Anderson sounded like an episode of "Sideshow Bob" and suggested the justices had not given the first serious thought to the facts and law of the matter, possibly committing any number of crimes in the process. Yes, judges can, and do, commit crimes -- and yesterday's peculiar handling of oral arguments suggests to me that justices on the high court need to be investigated for their apparent determination to give Trump a free pass, despite his clear engagement in an insurrection that was televised live for millions of Americans to watch. In short, Trump v. Anderson should have involved the application of a simple provision of law that dates to the Civil War, but SCOTUS appears determined not to take the straight and narrow path -- and that could involve criminal conduct at the highest levels of our judicial system.That might sound alarmist on my part, but Americans should not discount the possibility that it happened. Here is another case of a federal judge stepping in deep doo-doo.
As for E.J. Dionne, he describes his epiphany re: the Trump case in a column titled "Why I changed my mind and think Trump should be thrown off the ballot." Dionne writes:
When a narrowly divided Colorado Supreme Court threw Trump off the state’s primary ballot in December on the basis of Section 3’s plain language, my initial reaction was, well, political — and skeptical.
Though I agreed that Trump had, indeed, engaged in insurrection, I thought it would be best for the country to have him go down to defeat again in a free and fair election. Keeping him on the ballot so voters could decide was the path to long-term institutional stability and might finally force a reckoning in the Republican Party.
In short, Dionne was thinking beyond the boundaries of a legal case, and that probably is what led him astray. But as he took a deeper dive on the case, he came out on the other side:
Many people I respect continue to hold versions of this view. But the more I read and listened, the clearer it became that Section 3 was directed against precisely the conduct Trump engaged in. Its purpose is to protect the republic from those who would shred the Constitution and destroy our system of self-government. What Trump did in advance of the attack on the Capitol and on Jan. 6, 2021, legally disqualifies him from the presidency.
The record is clear that the legislators who wrote and enacted the amendment in the wake of the Civil War were not just thinking of the Confederacy’s leaders but also of “the leaders of any rebellion hereafter to come.”
Those are the words of John B. Henderson, a Republican senator from Missouri, when he cast his vote for the amendment in 1866. They are recorded in a powerful amicus brief filed with the Supreme Court by a distinguished group of historians of the era: Jill Lepore, David Blight, Drew Gilpin Faust and John Fabian Witt.
The amendment’s authors, they argue, “hoped not only to prevent a resurgence of secessionism but also to protect future generations against insurrectionism.” It was intended “to bar anyone who has betrayed an oath to uphold the Constitution from becoming President of the United States.”
They back up these assertions with a compelling 34-page account of what the framers of the amendment intended and why they wrote it as they did. The essay should encourage conservatives on the Supreme Court, which heard the case on Thursday, to ponder words they love: “originalism” and “textualism.” (Obviously, that did not happen at oral argument, probably because the SCOTUS justices probably did not read the historians' amicus briefs -- or any of the briefs, for that matter. Why read briefs when your mind already is made up?)
Dionne proves there is much to learn for those who actually read the briefs:
Other historically minded briefs made it harder for me to stick with my earlier, prudent view. A group of 25 historians, including James McPherson, the Civil War’s premier chronicler, and Nell Irvin Painter, a specialist in Black and Southern history, cite the congressional debate on Section 3 to show that it plainly applies to the office of the president. They offer clear evidence that implementing the section “did not require additional acts of Congress,” as some defenders of Trump claim.
Sherrilyn Ifill, a Howard Law School professor and former president of the NAACP Legal Defense Fund, shows how the clause to disqualify insurrectionists is closely linked to the 14th Amendment’s core purpose, “a bold and expansive promise of citizenship for Black people.” Its framers were preoccupied with the “ongoing resistance to full Black citizenship by southern states” and feared that “Black men who had been loyal to the Union … would be disenfranchised, while disloyal White former Confederates would be rewarded with the vote.”
Trump is a present-day embodiment of their fears, she wrote, having offered “a false narrative discrediting the votes cast in jurisdictions with high concentrations of Black voters,” including Detroit, Philadelphia and Atlanta.
And to argue that barring Trump from the ballot is “antidemocratic,” wrote professors Carol Anderson and Ian Farrell in another brief, is “ironic … as he bears by far the most responsibility for attempting to subvert democracy on Jan. 6.” An effort to overthrow constitutional procedures, wrote Ifill, should be distinguished from political protests, even those “accompanied by sporadic acts of violence.” Demonstrators are not the same as a mob trying to hijack the government.
Dionne is quick to say that Trump v. Anderson is filled with irony. Perhaps the biggest one is this: Donald Trump put his own presidential campaign at risk. He alone is responsible for the box he is in now. Joe Biden did not do this to him, and neither did anyone else. Writes Dionne:
There are paradoxes galore on this matter. Believing Trump should be unable to run, for example, is the opposite of a partisan wish, since he is without question the weakest Republican whom President Biden could face. Another: Even if Colorado was right to block Trump from the ballot, it shouldn’t be allowed to do so on states’ rights grounds alone. This is a national question, and the court should not duck the fundamental issues at stake — though my hunch is that the court might look for a way to punt.
The biggest paradox of all: Throwing Trump off the ballot would seem, on its face, the opposite of democracy. Yet the whole point of Section 3 is to protect constitutional democracy from anyone who has already tried to destroy it. If its provisions don’t apply to Trump, they don’t apply to anyone. The court would not be disqualifying him. He disqualified himself.
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