US Politics

On Monday, the US supreme court unanimously overturned the Colorado supreme court’s decision to remove Trump from the Republican primary ballot. The highest court in the land predictably concluded that the “insurrection clause” of the 14th amendment did not authorize state enforcement “with respect to federal offices, especially the presidency”.A contrary ruling would have been a recipe for chaos, and, worse still, would have done nothing to safeguard the nation from a potential Trump victory in November. I say this because presumably the only states that might have barred Trump from their ballot would have been those of the solidly blue variety – states Trump was going to lose anyway. And given that Republicans, particularly of the Maga-stripe, are masters of the politics of retaliation and escalation, we would have witnessed red states clamoring to remove Biden from their ballots. The result would have been an election precisely to Trump’s liking – one without democratic legitimacy.But if the court acquitted itself in this case, we still have reason to fear the mischief it might play in the upcoming vote. In Monday’s ruling, the court was conspicuously silent about whether Trump actually engaged in insurrection or election interference. Those matters are still to be decided at trial – that is, if either the Fulton county court or the DC district court ever gets to try its case.At present the Georgia prosecution is beset with problems of its own making. Whether the charges against the Fulton county district attorney, Fani Willis – that she allegedly profited by hiring a special prosecutor with whom she was romantically involved – are true is almost irrelevant. The fact alone that members of the prosecution are themselves under investigation casts a pall over a proceeding that needed to look squeaky clean.The federal election interference case is another matter. The federal case – arguably the weightiest of the four criminal cases pending against Trump – was to have been the first to go before a jury, with a scheduled start date of 4 March. The court already put the kibosh on that timetable when last week it chose, after taking its sweet time, to hear Trump’s claim that he enjoys absolute immunity for all official acts committed during his presidency – a wildly overblown claim already roundly rejected by two federal courts.That immunity hearing will take place during the week of 22 April, the very last week of oral arguments in the court’s 2023-24 term. This means that even if the court were to reject Trump’s immunity claim – as it presumably must – the federal trial probably would not start until September at the earliest.The timing is crucial for two reasons. First, those of us plunged into despair by the recent polling data showing Biden trailing Trump have taken meagre comfort in reports that a criminal conviction might cause a substantial number of voters to reject Trump. Delaying the trial could work to bar the American people from this critical piece of information. Those inclined to cynicism might observe – that is the very point.The timing also permits the court to influence the federal trial and possibly the election in a second, potentially more insidious fashion. The court is poised to decide a case this spring in which Trump is not a party, but which could have major consequences on his belated federal trial. The case involves a challenge brought by a January 6 rioter who argues that his federal indictment is based on a misapplication of the federal obstruction statute. The federal case against Trump also charges the former president with violating this statute, which criminalizes the “corrupt obstruction of an official proceeding”. Indeed, the charge lies at the heart of the case against Trump. Should the court conclude that federal prosecutors have misapplied the statute, not only would numerous convictions of rioters be tossed out, but the case against Trump would be dramatically, if not fatally, weakened.What does this have to do with timing? Had the court chosen not to hear Trump’s immunity claim, leaving intact the circuit court’s pointed rejection, Trump’s federal trial might have ended and a verdict rendered before the court had decided the rioter’s case. Imagine Trump had been found guilty and the court subsequently voided the conviction – the cries of foul would have been loud and fierce and long. Now, however, the court has given itself the opportunity to rule on the obstruction charge before Trump’s trial has begun. Defanging a prosecution before it has even started would certainly arouse outrage, but nothing like the partisan scorn and unrest that would come with a post-conviction intervention.skip past newsletter promotionafter newsletter promotionToday, Trump promptly described himself as “very honored” by the court’s ruling, adding that it “will go a long way toward bringing our country together, which our country needs” – the man is nothing if not shameless. But his sudden adoration of the court might not be misplaced. Without directly affecting the outcome of an election like it did in Bush v Gore back in 2000, today’s court still could swing a Trump win.
Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College More

Donald Trump may be the only person about whom prominent conservatives think innocence is irrelevant. Voters in many states filed lawsuits arguing that Trump was constitutionally disqualified from the presidency, under section 3 of the 14th amendment, having committed treason against the United States when resisting by force the peaceful transfer of presidential power. The Colorado supreme court agreed. Trump and his lawyers responded by waving numerous constitutional technicalities that they claimed exempted traitors from constitutional disqualification, while barely making any effort to refute charges that the former president committed treason on 6 January 2021.On Monday, all nine justices on the US supreme court agreed that Donald Trump should remain on the presidential ballot even if he is, in the words of Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, “an oathbreaking insurrectionist”. No one challenged that finding.Proponents of law and order – who, for decades, railed against judicial decisions that freed from criminal sanction suspected and convicted criminals based on due process rights that are unconnected to guilt or innocence – now celebrate the possibility that a contemporary Benedict Arnold may hold the highest office of the land. They rejoice that the supreme Court kept the former president on the ballot in all 50 states by relying on alleged constitutional rules that do not require Trump to defend himself against treason allegations.The charge is treason, that Trump is a traitor. Section 3 of the 14th amendment disqualifies past and present officeholders who engage in insurrection or rebellion against the United States. Case law and legal treatises from the American Revolution until the end of Reconstruction uniformly held that persons who engaged in insurrection levied war against the US. Levying war or engaging in an insurrection, these legal authorities agreed, did not require traditional warfare, but merely an assemblage resisting any federal law by force for a public purpose.Treason is defined in part by article 3 of the constitution as levying war against the United States. The Republicans who framed section 3 of the 14th amendment in 1866 self-consciously invoked the treason clause when considering constitutional disqualification. Representative Samuel McKee of Kentucky stated that constitutional disqualification “cuts off the traitor from all political power in the nation”. Senator Richard Yates of Illinois, who had been a close political associate of Lincoln, declared: “I am for the exclusion of traitors and rebels from exercising control and power and authority in this government.”Proponents of Trump’s disqualification presented powerful evidence to the trial court in Colorado and to the Maine secretary of state that Trump is a traitor who levied war against the US. They presented evidence that Trump knew that his tweets were instigating violence against state elected officials; that Trump was aware that the armed persons in the assemblage on January 6 were seeking his approval to resist by violence the peaceful transfer of presidential power; and that his speech and his actions after the speech were intended to incite and support the violent resistance to federal authority that occurred.Courts in Colorado and the Maine secretary of state found those evidentiary presentations compelling. Their decisions disqualifying Trump declared that the plaintiffs had met their burden when proving Trump was a traitor to the US.Had Trump been a poor, young man of color, conservatives would have insisted that Trump rebut the evidence and findings that he is a traitor. For more than a half-century, proponents of law and order have quoted the title of the judge Henry Friendly’s 1970 University of Chicago Law Review article Is Innocence Irrelevant? when persons suspected of ordinary crimes invoke constitutional rights in state or federal courts.Chanting “Is Innocence Irrelevant?” conservative judges sharply narrowed constitutional rights against police searches and self-incrimination. They drastically reduced the occasions on which persons suspected or convicted of ordinary crimes may assert what remain constitutional rights. Conservative justices have so gutted federal habeas corpus review that the underlying principle seems “better some innocent persons rot in prison than one guilty prison be freed on a constitutional technicality.” American prisons are now overpopulated by people who have had their constitutional rights violated during the process of investigating or prosecuting their crimes.Prominent conservatives make no such demands for proof of innocence when Trump is at the bar of disqualification. In the disqualification hearings, Trump’s lawyers made only perfunctory efforts to deny his culpability in the insurrection of 6 January 2021. His lawyers barely mentioned matters of guilt or innocence when filing briefs before the supreme court or in oral argument. Conservative commentators who insist that Trump remains qualified to hold the presidency do not spend their energies documenting why Trump is not a traitor. Six supreme court justices in Trump v Anderson refused to comment on whether Trump committed treason. That defense case, they implicitly recognized, cannot be made.Trump, his lawyers and his supporters respond to charges that Trump is a traitor with numerous assertions that have nothing to do with whether Trump incited and participated in the January 6 insurrection. They claim that section 3 exempts treasonous former presidents or permits traitors to be elected president of the US. They insist that traitors can be disqualified under the 14th amendment only if Congress authorizes the disqualification. They claim that section 3 disqualifies only persons who committed treason during the civil war and does not disqualify persons who lead violent secession movements now.The supreme court in turn invented a rule that congressional legislation under section 5 of the 14th amendment is necessary for federal officials to be disqualified, a rule unknown to the text of section 3 or the persons who framed section 3. Mississippi in 1868, under this rule, could not disqualify Robert E Lee or Jefferson Davis from the presidential ballot.So-called originalists are not deterred by proof that many if not all these technicalities are far-fetched and belied by the historical evidence. There is nothing in the text or history of the 14th amendment, for example, that suggests different procedures for disqualifying federal officers than those used for disqualifying state officers. The prison abolitionist movement would achieve its goals if courts showed the same creativity finding technical excuses to avoid conviction in ordinary criminal trials as Trump and the supreme court have shown when avoiding disqualification.Trump’s advocates argue that the former president’s innocence is irrelevant when responding to the numerous criminal indictments against him by federal and state prosecutors. Again, Trump barely contests the multiple felony indictments that charge him with engaging in racketeering, soliciting or impersonating a public officer, making false statements or documents engaging in conspiracies to defraud the federal government and against civil rights, obstructing justice, willfully retained national defense information, illegally withholding or altering documents, and falsified business records.To all those crimes Trump claims that he cannot be legally culpable for any criminal action he took when president of the United States. Rebutting criminal charges is for ordinary Americans, not for the Maga leader.skip past newsletter promotionafter newsletter promotionTechnicalities matter. Innocence is sometimes irrelevant. We often protect the innocent by not punishing the guilty. Refusing to permit reliable information obtained by an unconstitutional search into evidence at trial may deter police officers from unconstitutionally searching people not guilty of any crime. Government should not profit from wrongdoing. The justice Louis Brandeis in Olmstead v United States (1928) wrote, “If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”Commitment to the rule of law may provide a third reason why innocence is sometimes irrelevant. No one may be convicted of treason on the testimony of one eyewitness, no matter how weighty the incriminating evidence, because article 3 requires two witnesses to support a treason conviction. The supreme court’s conclusion that Colorado could not disqualify Trump without congressional permission, however implausible as a matter of law, does compel the justices to permit the former president to remain on the ballot no matter how strong the evidence that Trump is a traitor.Yet innocence is also sometimes relevant. The rule of law does not provide sufficient reasons for straining the constitution to find technicalities that enable traitors to run for president of the United States. The principle that clear legal mandates must be followed does not justify performing legal gymnastics to reach such an absurd result as exempting a former president from a constitutional ban on insurrectionists holding office.Innocence is always relevant when a person seeks honors or power. Constitutional commitments to the rule of law do not require giving the same respect to suspected criminals who get off on technicalities as to persons found not guilty, even as both may not suffer direct or collateral criminal sanctions. Persons seeking honors must rebut charges of culpable behavior. They cannot excuse their conduct by pointing to legal technicalities.A work of literature is not eligible for the Nobel Literature prize if the author without attribution lifted passages from another book, even if the statute of limitations no longer allows a lawsuit for plagiarism. People are properly disqualified from being on drug prevention taskforces after avoiding being convicted for drug dealing because the search that uncovered the incriminating fentanyl was unconstitutional.Trump’s innocence is relevant to his political qualifications for the presidency even as the supreme court decides his innocence is not relevant to his constitutional qualifications for the presidency. No political party should in good conscience nominate, and no voter should in good faith support, a candidate who seeks on constitutional technicalities to avoid a charge of treason.Trump’s guilt, which he and his attorneys have largely conceded, is not irrelevant to his being entrusted with the presidency. By insisting that his innocence is irrelevant to his legal qualifications to hold office, Trump is disqualifying himself from holding office politically. His failure to contest the evidence of his treason acknowledges that, the supreme court decision not to the contrary, he is a traitor who must not hold any office of trust or profit under the United States.
Mark A Graber is a professor of law at the University of Maryland and the author, most recently, of Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War More