The Grand Illusion
One of our Founding Fathers, John Adams, said that a republic was “a nation of laws, not of men,” meaning that men were not above the law.
And for generations, politicians and others have claimed that a distinction of the United States was that we are a nation of laws, and that no one is above the law.
Yet today, we have a former president asserting that, as president, he was and is above the law.
Legal scholars, some of them quite conservative, have also charged that Trump cannot be president again, because the presidency is forbidden to him by the wording of the Fourteenth Amendment, which declares that no one who has taken an oath to the United States and then betrayed it by taking part in an insurrection can hold public office.
Both these issues are being appealed and will likely come before the Supreme Court.
Trump supporters and populists are opposing limits on Trump, primarily on the grounds that the application of these laws would deprive the American people of a free choice.
What this “free choice” argument means, make no mistake about it, is that any man popular enough to gain great support is above the law.
Now, the Supreme Court may issue a weasel-worded opinion allowing Trump to run for President, or create a narrow exemption for him, but such an opinion, however worded, is simply an endorsement of power over law.
The Trumpists will come up with legal contortions to deny that, but the fact remains that Trump created an insurrection in an attempt to overturn a free and fair election.
They may also claim that Biden is “corrupt,” but so far, there is no evidence to prove that. More important, even if Biden were corrupt, that has no bearing in law on whether Trump should be allowed to seek the presidency again.
Also, Trump has already been convicted of sexual assault and defamation. He has also been found guilty of tax evasion and fraud. And he faces four indictments and ninety criminal charges. Equally important, he’s already stated that he’ll set aside the Constitution if it gets in the way of what he wants to do.
He has built a campaign on denying the laws, and vilifying those who want to hold him legally accountable… and gaining greater and greater popularity and power through those continuing lies.
The question before the Supreme Court is rather simple.
Will we continue as a nation of laws, however imperfectly? Or become one based solely on power and lies?
Years ago when I was fairly young I heard a story on the news about an opposition candidate in another country being arrested for sodomy.
At the time it seemed to me that there was a strong likelihood that the charge may have been a trumped up one with no basis in fact. The charge being a way for the political incumbent to weaponise the legal system against their opponent. Even if the allegation was true I didn’t think it should have been a criminal offence in the first place.
Decades ago in a classic Doctor Who story – The Deadly Assassin – the Doctor was suspected of assassinating the President of Gallifrey (his homeworld). The Doctor made use of a legal loophole to avoid being detained by declaring himself a candidate for the Presidency for the purposes of buying himself time to find the real killer.
The idea that someone could be suspected of assassinating a sitting President and then run for President themselves seems absurd on the face of it. However I’ve come to think that it’s important for social cohesion in a democratic society that not only is the criminial justice system not used to interfere with elections but also that is must avoid even the appearance of doing so.
So you can attempt to overturn one election, commit and already be convicted on other counts, and still run for office? I have a problem with that, especially when state officials from Trump’s own party found the 2020 election free and fair.
That effectively says that popular will trumps [pun intended] the law, and that power means more than law, which is a major step toward a dictatorship — and it is a dictatorship even if people prefer it over a rule of law.
“The idea that someone could be suspected of assassinating a sitting President and then run for President themselves seems absurd on the face of it. However I’ve come to think that it’s important for social cohesion in a democratic society that not only is the criminial justice system not used to interfere with elections but also that is must avoid even the appearance of doing so.”
I fear I misunderstand you: do you mean that a person who belongs to a group can break a rule or law of that group and still be a candidate for leader of the same group of humans?
In such a situation would that not permit any member from carrying out any action and continue a member of the group? In other words the group ignores their own rules and laws: and thus is in fact lawless.
This would in fact decrease “social cohesion” as would anarchy. Applying the laws of a group to all within the group would not exclude “not only is the criminial justice system not used to interfere with elections but also that it must avoid even the appearance of doing so”.
By the way: the members of any law/rule abiding group have already expressed their “freedom” of choice.
There can be a lot of grey area in whether committing a crime invalidates holding office. I agree with the 14th ammendment, it may not go far enough, but at least it feels like a solid line. Insurrection invalidates office holding vs getting pulled over for speeding. Being convicted of Insurrection should prevent anyone, no matter how popular from holding office. There are lots more fish in the sea, so to speak. I believe Trump is currently only indicted. When he is convicted then the it should apply. I suspect Colorado jumped the gun intentionally to speed up the process rather than waiting on interminable appeals, etc.
I agree. And, no matter how despicable a person is, they can’t be held inherently guilty of insurrection, until they’ve had their day in court. That’s what a nation of laws, not men refers too. I’m sorry, we can’t go and slam a label, until thi is so. That leads towards even more tyranny. Let the voters decide. He wasn’t going to win Colorado in the general election any way. All this infighting gives all those supporting him air time, and really solves nothing.
One of the problems with all this is that Trump insists that he can’t even be tried for insurrection — that he’s totally above the law — which is something that only the Supreme Court can decide.
I will be sorely disappointed in the Justices should they decide a president is above the law. They are supposed to be the executor of the law, not the creator, not the judge. The enforcer of law and order and the spokesperson for our nation. An exemplar of who we aspire to be. The leader of our armies. I fear many Americans have lost sight of what a president is and instead are voting for someone that validates themselves or worse… voting against a candidate they don’t like.
As of this morning, SCOTUS has decided not to take up the question of whether Trump is above the law. I believe they ultimately will decided a former president is *not* immune from prosecution, but for the moment they are delaying addressing the question in a move that has no other effect that I can see other than to delay his trial and bringing him closer to the election window where norms make it harder to prosecute him. There’s nothing new under the sun, so a court engaging in blatant political favoritism/corruption isn’t anything special, but seeing SCOTUS do it on such an important matter, so close to a existential election, is deeply disappointing. The longer this goes on, the more obvious it is to everyone how much institutional rot is infesting US governing institutions.
Uh, Trump DID have his day(s) in the Colorado court – all the way to Colorado’s Supreme Court. If the conservative USSC really does believe in states’ rights then end of story and the Colorado position holds for Colorado.
Also, there are more than enough capable people to be US president should they run. I don’t believe a single individual’s ‘right’ to run for president trumps (also intentional) the country’s right to have a qualified candidate whose liabilities are known to the electorate. The Luttig/Tribe law paper handles the qualification part in great detail and makes a strong case that the insurrection action is self-disqualifying. The US does not need an authoritarian, nor an icon, in the Oval Office. They certainly can use someone that is qualified and competent.
The issue is that the Republican apologists aren’t really committed to good faith arguments. They claim that *any* law enforcement pertaining to Trump is election interference. This whole idea of avoiding even the *appearance* of election interference is a fantasy–a purpose-built fantasy allowing Trump to break the law at will. Politicians are always pushing the envelope of acceptable behavior and using their position as a shield (Menendez and Santos come to mind). Trump doing the same with the election is a good test of our country’s common sense. He’s an obvious criminal trying to escape justice. Republicans *will* claim election interference no matter what–so why not do the right thing? And when pressed on the Colorado case, these supposedly conservative apologists spit on states’ rights and claim SCOTUS has to be consulted despite local elections being under the aegis of the state. No doubt if SCOTUS were to rule against Trump they would immediately claim that result as biased too and just further proof of election interference. Because there is no winning with Trump apologists, why not follow the rules and norms that have made the United States an admirable example. Trump broke the law: hold him accountable. When James Comey broke with norms to comment on Hillary Clinton’s emails during an election cycle, it was disastrous, but Democrats grit their teeth and moved on (they did complain, but they didn’t stage a coup!), the country also got over it and moved on. Trump committed actual crimes both state and federal, and if Colorado can’t enforce the 14th amendment in their own state ballot, what good is having a constitution? Maybe it’s time we ignore Section 1, Article 2 and have Arnold Schwarzenegger run for president.
Thank you for your comment. But, the point I was making, Trump hasn’t had a day in court, to determine his guilt or innocence. I don’t have a jurisprudence degree, nor will I engage in talk like I had one. But, if we are truly “a nation of laws, not men”, then are actions must be in accordance to those laws set forth. Colorado’s hurried decision, is simply based, at this time, on is alleged actions. No matter how hated, this fool is entitled to a defense, and his day in court.
Damon,
It was not a hurried process. There were five days as I recall of evidentiary testimony and the case went through the entire sequence of the Colorado courts all the way to the state’s supreme court. The vote was 4-3 upholding the decision and the dissenting votes did NOT argue that Trump was not an insurrectionist. In fact George Conway recently wrote an opinion in The Atlantic that said the “weakness of the dissents” in that Colorada SC decision is what changed his mind and he now supports the decision to disqualify Trump from the ballot.
I will now add that the US Supreme Court, as just reported by the NYT has DECLINED to hear the Jack Smith appeal that the USSC should intercede on the question of presidential immunity in the DC Jan 6th trial. By making this non-decision they have effectively gifted Trump the necessary time delay to not have that trial in March of 2024 (it’s stayed pending the hearing at the appelate level) and likely not be tried/decided in 2024 at all. IF Trump is elected he will immediately bar the DOJ from continuing the case. He may even give himself a pardon.
Now as far as the Colorado Case, I expect the USSC will not follow the same path and will throw their weight into the issue. It’s not difficult to imagine how they can decide the case in a way that keeps Trump on the ballot in every state with some sort of twisted originalist historical logic. Just saying, ‘cuz that’s what they do. As LEM said, everyone is punting on the law based pathway in favor of a populism based path. I expect this will not end well.
Trump had his day in court in Colorado–he lost. But Trump apologists don’t like the outcome and so they have decided that states rights don’t matter anymore and the Supreme Court should now make all final decisions with regards to state election laws…funny how that happens when six of the nine justices are suddenly conservative and willing to throw out prior precedent. Almost like “we are a nation of laws” only matters when Republicans hold enough influence to be certain of getting their way. Before that, it was states rights that mattered and the Supreme Court needed to stop overreaching. As for needing a degree in jurisprudence to assess Trump’s guilt, if Donald Trump’s *recorded* words extorting Ukraine and attempting to steal votes in Georgia aren’t enough to convince you he’s a criminal, I’m not sure anything ever will. How would a trial help? If words don’t have any meaning outside a judge telling you the sky is blue and water’s wet, how can you ever be sure he’s guilty…or that gravity exists, or the world is round…basic facts have to exist or else you can just keep pointing to new so-called “authorities” that have to be consulted every time there’s a fact you don’t like. Trump is a criminal, his recorded voice combined with common sense tells us that–whether he’ll ever be convicted in a court of law is an open question, but that shouldn’t stop you from using your eyes and ears for yourself.
Why should state courts have any jurisdiction over an (alleged) national offense? That’s not state’s rights, that’s weaponizing anything one can on the assumption that blocking Trump is more important than doing it right. That falls right in line with those who promote the most monstrous interpretation of anything he has said or done.
Understand, I don’t much care for someone that has no filters on what they say (and uncertain ones on what they do), at least not until it’s too late. But the policies of the left, or of weak supposed conservatives that would rather be liked than crush evil, are so despicable and destructive that I’d chance someone deeply flawed, but at least not with those policies.
Again, thanks for the comments. I neither argued for against the ruling, nor jumped to any conclusions, like many have. I was not aware that Mr Trump had made an appearance, court date set, decided if it was a jury, nor allowed to defend himself, in the state of Colorado. If he has I apologize, either way I have no opinion, as I can’t stand the guy. But even the lowest denominator in our society is entitled to a summary defense.
Damon, the argument that legal scholars Luttig and Tribe make (One a well respected conservative former judge and the other a well respected liberal law prof) is that no ‘conviction’ is required to bar Trump from being on the ballot in a case of insurrection. The 14th amendment section that pertains to insurrection (I believe section 3) is SELF EXECUTING. Here is one reference to their fall argument. You can find others out there as well as many interviews they have done in recent months.
https://www.newyorker.com/news/q-and-a/the-constitutional-case-for-barring-trump-from-the-presidency
That was the case for Confederate officials and officers; it was obvious. For any later alleged incident, if the mere proclamation (not unanimous, either!) of insurrection is presumed effective, that violates the heck out of due process.
And no, I don’t care if Trump is exhausting every outrageous theory that might defend him. His opponents are reaching every bit as far to bring him down; and way too many of them want to see him die broke in jail. That’s not law, that’s revenge.
I’d rather a Republican with similar policies but far less baggage. But that doesn’t seem a likely choice.
“His opponents are reaching every bit as far to bring him down”…
Well, you know, it’s all in your point of view. Five people died as a result of Trump’s actions that day. How many millions died because he went anti-mask and pro-bleach in the early days of COVID?
How far *should* his opponents go, to stop a repeat of such utterly pointless deaths?
I’m of the opinion that he’s the greatest danger to democracy since Putin and Xi. You’re welcome to disagree. But it’s still opinion.
I’m anti-mandate, although I still wear a mask in crowded places, and have had all the shots (being old enough and high risk enough that IMO the nonzero risk of the vaccine is lower than the risk without it, and to protect some far older persons that I must visit occasionally)…although I still got a mild case, wouldn’t have even noticed it except smell and taste went away for a couple of weeks; but at that time it was a mild strain anyway). But higher risk is an acceptable alternative to being told what to do. And most masks protect FROM the wearer far more than they protect the wearer (obvious, stop droplets at the source), so it’s not an easy sell.
With the poor masks most people had, there’s NO way that masking, not masking, bleach as long as you don’t drink it (obviously a sarcastic remark not meant literally, and I don’t care if stupid people of either party kill themselves; and why should you mind either if it’s the most brainless Trump followers that might take it literally), or anything else would have made a difference of millions in the outcome. States that went lockdown crazy did NOT have better outcomes than those that didn’t. The vaccines were variably effective depending on how close a match they were to what was circulating at any given time. Being obedient to experts is vastly overrated, and so are the experts; in hindsight, they weren’t right nearly as often as they pretended to be, not surprising if one’s view of public health is compliance-based. The lockdowns demonstrably did huge damage to education, mental health, businesses, etc.
And of course it’s constantly forgotten that Trump said to keep the protest peaceful (even if he didn’t repeat it often enough).
Outstanding, what worries me, is once this is available, I’m worried about times when the other side uses that same argument. It’s kinda scary, that we can legally boomerang our laws to, and I continue to say, get a candidate who isn’t, wasn’t, never, qualified to run for office. Lookout when the pendulum swings, for roadsides ied’s. That’s all I’m saying.
It is not possible to formulate any rule or law which will determine all conditions at all times. This means we have humans who always find ways to interpret laws to their advantage. That is why the most important factor in “a nation of laws” are the judges. They have to have significant leeway to interpret laws taking into account their purpose and the special circumstance of the specific transgression. Judges have the difficult responsibility of ensuring lawfulness and humanity in their instructions to the members of the jury and limiting the damage to the group from one infraction by also reducing future misuse of any related finding/ruling/sentence. But yes there will always be some people who will use a tool one way one time and the opposite way the next.
The biggest issue with allowing Trump on the 2024 election ballots until/unless he’s convicted is the simple political reality that if he is actually elected (which appears increasingly likely), we can expect his first move will be to quash any and all open Federal investigations and prosecutions of him. And it is not clear that conviction in a state court such as Georgia would preclude him from punishment so long as he remains President.
So the concerns about the rule of power over the rule of law seem quite warranted in my view.
A nation of LAWS only matters when the lawyers and Judges sworn to enforce those laws are willing to enforce them. Why is SCOTUS not accepting the urgent requests for rulings? Are they delaying until the case is moot by Trump being elected or defeated? How many lawyers were involved in the fake elector conspiracy? Does Trump declaring publicly that he is still President and being recorded telling Georgia to find 11000 votes not obvious insurrection.