If you’re looking for fresh evidence how we’re sleepwalking toward fascism, look no further than the pre-holiday court ruling which decreed that even though Donald Trump is an insurrectionist who “acted with the specific intent to incite political violence” on Jan. 6, he still belongs on the 2024 ballot – despite the constitutional provision that bars insurrectionists from seeking power.
This Nov. 17 ruling, in Denver, is a classic example of how our supposedly durable institutions are failing us at one of the most crucial junctures in American history. It’s like saying, “The defendant is guilty of robbing banks, but we have to let him go free. We can’t punish him because the laws against robbery don’t mention banks.”
A group of Colorado voters recently sued to keep Trump off the state’s primary ballot, rightly citing the U.S. Constitution’s 14th amendment, which unequivocally declares that “No person shall… hold any office, civil or military, under the United States, or under any state, who having previously taken an oath as a member of Congress, or as an officer of the United States…shall have engaged in insurrection or rebellion against the same.”
Similar disqualification efforts are pending in at least 16 other states.
A Colorado district judge, Sarah Wallace, got the case. After meticulously sifting the factual evidence, she concluded beyond a reasonable doubt that “Trump materially aided the attack on the Capitol,” that he “acted with the specific intent to invite violence and direct it at the Capitol with the purpose of disrupting the electoral certification” of Joe Biden’s victory.
Bottom line: “Trump engaged in an insurrection on Jan. 6, 2021 through incitement.”
Then she got cold feet.
She inexplicably concluded the aforementioned 14th amendment allows an insurrectionist to run for president. In her words, “there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification” – despite the specific language that prohibits any officer of the United States from holding any office if that officer engaged in insurrection.
Don’t words matter anymore?
In what conceivable universe is the office of the president not covered by the words any office, civil or military, under the United States?
My beef is shared by principled conservatives who believe in the literal meaning of words and phrases and sentences. Two such legal scholars, William Baude and Michael Stokes Paulson, recently assessed the 14th amendment and concluded that of course the presidency meets the definition of any office. They write, “At the risk of belaboring the obvious: Article II (of the Constitution) refers to the ‘office’ of President innumerable times. It specifies the length of term for which the President ‘holds his Office,’ certain minimum qualifications for eligibility ‘to that Office,’ what happens upon the President’s removal ‘from Office,’ or inability to discharge ‘the Powers and Duties of said Office,’ and the oath he shall take before entering ‘on the Execution of his Office.’ If the Presidency is not an office, nothing is.”
One of our most eminent conservatives, former federal appeals judge J. Michael Luttig, was clearly blown away by the ruling that keeps Trump on the ballot: “It is unfathomable as a matter of constitutional interpretation that the Presidency of the United States is not an ‘office under the United States’…It is plain that the entire purpose of (the 14th amendment), confirmed by its literal text, is to disqualify any person who, having taken an oath to support the Constitution, engages in an insurrection or rebellion against the Constitution. The former president did exactly that when he attempted to overturn the 2020 election and remain in office in rebellious violation” of the Constitution.
The Colorado voters who sued to keep Trump off the ballot are appealing Judge Wallace’s decision, understandably so. Rather than follow the logic of her own decision, Wallace let Trump off on a technicality thinner than a thread of dental floss, and kicked the can to the higher courts. Maybe she really believed that her splitting of hairs was prudent; maybe she was worried about the death threats that would inevitably flow in if she’d disqualified the insurrectionist.
Granted, it’s great that Trump has finally been branded an insurrectionist in a court of law – a finding that may buttress Jack Smith’s criminal case in the Washington trial slated for March. But we’re engaged in a war to save democracy, and institutional timidity won’t cut it. Fascists feast on loopholes.
Dick Polman, a veteran national political columnist based in Philadelphia and a Writer in Residence at the University of Pennsylvania, writes at DickPolman.net. Email him at dickpolman7@gmail.com
Correct in every particular.
“My beef is shared by principled conservatives who believe in the literal meaning of words and phrases and sentences.”–LOL, funny how the left drops their belief in a “living constitution” when it’s convenient for them to do so.
Of course, as a marxist, Polman thinks anyone opposing his political ideology is a fascist, so pretty much any assertion he makes in that regard can be summarily dismissed.
Fascist calls the other guy fascist *surpised pikachu face*
Editorial would have been much better if it had actually dealt with the explanation of the judge in the opinion.
Full text of the judge’s opinion on the Trump case in a PDF is at https://bloximages.newyork1.vip.townnews.com/coloradopolitics.com/content/tncms/assets/v3/editorial/6/9a/69ad60e0-85a5-11ee-9303-c31290947a48/6557fe7e65094.pdf.pdf. The relevant section begins on p. 95, paragraph 299.
Two key paragraphs, in my reading:
302. To lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because as Intervenors point out, Section Three explicitly lists all federal elected positions except the President and Vice President. Under traditional rules of statutory construction, when a list includes specific positions but then fails to include others, courts assume the exclusion was intentional.
303. Finally, the Intervenors point out that an earlier version of the Amendment read “No person shall be qualified or shall hold the office of President or vice president of the United States, Senator or Representative in the national congress….” Kurt Lash, The Meaning and Ambiguity of Section Three of the Fourteenth Amendment, 10 (Oct. 28, 2023) (unpublished draft) (on file with the Social Science Research Network). This fact certainly suggests that the drafters intended to omit the office of the Presidency from the offices to be disqualified
Pro tip: When attempting to divine legislative intent, it’s best not to cite what the legislators omitted to explain the text of what’s left.
So, is the Office of the President not an office? It is ridiculous to think that the writers would have excluded the holder of the most powerful position (office) in government from this provision.
Watching the fascist sh*storm in Israel, India, Europe and now even America, from outside, it is nice to see some people stand up to the White Christian Nationalist fascism now destroying America. Well done Mr Polman for being awake in a sleepy world. Regards from Canada.
Insurrection or riot ? Debatable . What’s not debatable is that in three plus years since Jan 6th , a special council investigation, and numerous indictments against 45 , not one of those charges were for * drumroll * “ insurrection “ The idea that the left is going to save democracy and us from a dictatorship by themselves becoming the dictators and fascists is a downright insult to the intelligence of most Americans. Some of you ( including the author of this so called article ) would so readily give up their constitutional rights for some misguided opinion of what democracy is. I’ll tell what democracy isn’t , it’s not making sure your name is the only one you can vote for and say that it’s in the name of freedom .