Eduardo Munoz Avarez/AP Photo
Former President Donald Trump returns to the courtroom after a break in proceedings at the New York Supreme Court, November 6, 2023, in New York.
This Saturday is the third anniversary of the January 6th attempted putsch, the culmination of a monthslong effort led by Donald Trump to overturn the results of the 2020 election. He filed dozens of ludicrous lawsuits, tried to bully state officials into changing the results, and finally cooked up a scheme to replace the legitimate Electoral College vote with a fake one. The point of sacking the Capitol was to violently coerce Congress and Vice President Pence into accepting this fake slate of electors.
We also recently got a reminder of another way Trump flagrantly violated the Constitution in office—by accepting money from foreign governments. It has long since fallen off the front pages, but as president, Trump was constantly receiving payments from foreign governments that patronized his businesses in flagrant violation of Article I, Section 9, which categorically forbids anyone holding federal office from accepting any payment or gift from such sources (“emoluments,” per constitutional parlance) without the approval of Congress. A lawsuit attempting to hold Trump to account for this was bottled up in federal courts for his entire presidency, then dismissed by the Supreme Court because it was moot.
Now we learn via House Democrats that Trump apparently received at least $7.8 million from foreign governments while in office, mostly from China. As the report notes, this is almost certainly a large underestimate—Citizens for Responsibility and Ethics in Washington estimates Trump had 3,740 conflicts of interest, and made up to $160 million from foreign countries during his presidency.
Any functioning, healthy democracy would have had Trump arrested the day President Biden was inaugurated, and thrown the book at him for as many of his dozens of alleged crimes as possible. Trump could not be more obviously the kind of highly dangerous demagogue who must not be allowed to hold power under any circumstances.
The legal system has consistently shied away from punishing Trump for doing any of this stuff, until quite recently. Now he is being prosecuted by Special Counsel Jack Smith over January 6th (along with many other cases), and more recently, he was disqualified from the Republican primary ballot by the Colorado Supreme Court and the Maine secretary of state.
The disqualifications prompted a flurry of anxious hand-wringing from various prominent liberals, who urged the Supreme Court to overturn the decision. Harvard law professor Lawrence Lessig argued in Slate that the 14th Amendment’s Section 3 doesn’t apply to the presidency, because unlike senators and representatives, it isn’t mentioned specifically. Jonathan Chait in New York and Samuel Moyn in The New York Times argued the decision was politically unwise.
Let me start with Lessig’s strained technical case. The argument is so preposterous that one struggles to respond to it, but Vikram David Amar does yeoman’s work laying it out at Verdict. It’s very simple: The presidency is an “office under the United States,” which is included under Section 3, and so it applies. The Constitution distinguishes executive or judicial offices from legislative seats because Article I stipulates that you can’t occupy both at once. Open and shut.
But let’s set legal technicalities aside. The purpose of Section 3 of the 14th Amendment was to prevent traitors and rebels from gaining national power. This wasn’t a theoretical question, either—the Buchanan administration had been lousy with traitors prior to the Civil War, including Secretary of War John B. Floyd. As Ulysses S. Grant writes in his memoirs, Floyd “scattered the army so that much of it could be captured when hostilities should commence, and distributed the cannon and small arms from Northern arsenals throughout the South so as to be on hand when treason wanted them.”
As the Colorado decision points out, Rep. Samuel McKee (R-KY), one of the framers of Section 3, said in a speech discussing the proposed amendment that it meant “the loyal alone shall rule the country” and traitors would be “cut … off from political power.”
It is long since time that defenders of democracy started behaving like Trump is the menace he plainly is.
I actually looked up the whole speech, and parts of it are even more blistering and explicit. “As nobody expects now that any traitors will be hanged (which is the punishment provided by law) let us cut off their heads politically, and say to them, you can never hold office under this Government,” McKee said. “By this means we will affix the brand of treason upon the traitor’s brow; and there I would have it remain until the snows of winter covered their graves.”
Are we seriously to believe that this guy intended to ban rebels and traitors from all federal offices except for the very most powerful and important one? Gimme a break.
At this level of willful obtuseness, one might as well argue that Barack Obama is eligible to run for a third term because the 22nd Amendment only says a president can run for election twice, but in 2012 he ran for re-election, you see. Up is down, black is white, for ever and ever, amen.
Chait and Moyn, by contrast, mostly hang their arguments on gut-check political predictions. The case “strikes me as dangerous and likely to backfire,” writes Chait. “As it unfolds, the effort to disqualify Mr. Trump could make him more popular than ever,” writes Moyn.
Now, I regard it as highly likely that the reactionary Supreme Court majority—three of whose members were appointed by the insurrectionist in question—will overturn the decisions in Colorado and Maine. I’ll also admit it might not work out politically. What I object to is this pathetic lack of resolve. We are facing an utterly corrupt would-be dictator, who already tried to overthrow the government once, who is plotting his regime consolidation and punishment of his enemies in broad daylight, and these clowns are making his legal arguments for him.
Indeed, not only that; both Chait and Moyn downplay the January 6th putsch to bolster their arguments. Chait says it’s up for debate whether Trump really engaged in insurrection: “When I have the chance to use a longer description, I generally say that Trump attempted to secure an unelected second term in office.” (Do tell.) “What actually happened on Jan. 6 … is still too broadly contested,” writes Moyn.
The amount of loser, kick-me energy on display here is nigh indescribable. As John Ganz writes, “A political class that can’t defend the constitutional order and the rule of law is worse than useless: it’s actually conspiring with its enemies.”
It is long since time that defenders of democracy started behaving like Trump is the menace he plainly is. This country, however hypocritically, was founded on the idea that it is worth violent resistance to ensure that governments derive “their just powers from the consent of the governed.” What is needed today is the firm decisiveness—as Rep. McKee, who served in the Union army, showed—to attack on every political front, legal or otherwise, not half-baked rationalizations why it’s better to do nothing.
Trump is facing unprecedented lawsuits attempting to kick him off the ballot, because he absolutely, unquestionably did violate the Constitution. This is not some impossible metaphysical quandary—it is an opportunity. What will happen depends heavily on how liberals react. The best way to make sure it works out for Trump is by lending liberal credibility to the argument that Trump is a legitimate candidate and January 6th was no big deal.
Far better to let his party’s corrupt hacks on the Court humiliate themselves trying to pretend that what happened on January 6th didn’t really happen, and use the resulting attention to remind the public about Trump’s innumerable crimes. If they do decide in his favor, then use it to discredit the Court even more. And if they do decide against him, then fine. Like his fellow would-be dictator Jair Bolsonaro, who was recently banned from running for office for eight years by a Brazilian court, Trump deserves it.
