DANIEL VAUGHAN: Removing Trump For Insurrection Requires A Very High Legal Bar

 December 29, 2023

Multiple states have now decided whether Donald Trump is eligible for the 2024 ballot. The argument is that he can't appear on the ballot because he engaged in an insurrection, and because of that, he can't appear on the ballot. The argument is ludicrous on its face and lethal to the health of the American Republic in practice.

On the merits, it's wrong because Trump hasn't been convicted of insurrection in any court in America, nor has he admitted to being an insurrectionist. Judges are stepping in and claiming Trump's actions on January 6, 2020, constitute insurrection, but neither Congress nor the courts have decided on this issue (we'll return to this point).

Law professor Ilya Somin counters that this doesn't matter and compares it to being civilly liable while being criminally free. The example he cites is OJ Simpson, who won the criminal case but lost the civil matter. He also offers the example of the Civil War, where surrendered soldiers weren't allowed to run for office afterward.

The soldiers' example is weak because the act of surrender and laying down of arms is a tacit admission of guilt. In no way is there an example of Trump doing that. But Somin's argument falls apart the most because he compares the action of stripping a political candidate from a ballot to that of a civil case where the bar is lowered for proof. 

In raw political terms, stripping a political candidate from a ballot for "bad acts" without a conviction shouldn't require a lower bar but a higher one. If you're removing former Presidents from the ballot and accusing them of crimes against the state, you'd better come with all the evidence in the world. Relying on a lower bar risks ripping the country apart at the seams. Deciding this on technicalities gets a single issue right on one tree while the forest burns down.

The comparison here is impeachment. You don't need an actual criminal act to remove a President from office. You can list any reason at all. But there's a reason Congress has always investigated and looked for hard evidence against a President. Removing someone from office is politically fraught, and you'd better only do it if you have no choice. The one time they really had that, President Nixon resigned, and Ford pardoned him for those acts.

The bar for ripping apart the political process is not lower. It's higher.

But let's play with Somin's logic for a moment, and let's assume this is the new standard we're using for ballots. If that's true, Donald Trump isn't the last person we should remove from the ballot. The full clause of the 14th Amendment states, "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Think hard for a minute: was January 6, 2020, in Washington DC, the last time insurrection activity happened? Let's think back to 2020 when cities across the country burned while members of the far left in Congress cheered this on or marched with the protestors. Or think more recently, how many members of Congress are openly siding with anti-Israel racists calling for the end of Israel and the United States?

It's not hard to find those fires and cities getting torn apart. If we're going full-throttle with a lower bar for removing a person from the ballot for insurrection and giving "aid or comfort" to the enemies of the United States, then we have to apply the law fairly. Democrats aren't the only ones who can apply flimsy definitions of law to remove politicians they don't like.

That's the Rubicon we're crossing here. When you lower the threshold for partisans to remove the other side using weak definitions and lowered legal standards, you're ripping apart the country at its seams. Removing people from the ballot isn't support for law and order. It's cheering for the downfall of it.

Even Gavin Newsom in California grasps the point of this, decrying the attempts of these states to defeat Trump before a vote is ever cast. The lawyers don't grasp what the politician does. If it's open season on removing candidates legally before a vote is ever cast, the political process is irrevocably altered.

The time to deal with Donald Trump on this exact issue was the impeachment proceedings before Congress. The failure of the impeachment process is not an invitation for the judiciary branch to rid itself of all notions of sobriety and start doing what it believes the political branch failed to do.

Maine, Colorado, Michigan, and other states should refrain from this nonsense. I mentioned we'd return to the conviction point we started on and will here. This issue is unquestionably going to go before the Supreme Court now. I fully expect someone like Justice Sotomayor to jump on this theory - she'll run with anything that fits on MSNBC.

But I don't expect Chief Justice John Roberts to have the desire to have the highest court in the land to adjudicate what is and isn't insurrection when the political branches and courts have refused to do that. Roberts will want more. Begging for the Supreme Court to save you when the political process has pointedly refused is asking for the impossible.

The Roberts Court just extricated itself from the abortion issue, which defined it for more than 40 years. Now is not the time for it to start picking and choosing winners at the ballot box before a vote is cast, and that's precisely what the lawyers in this case are doing. The bar for that isn't lower. It's higher than anything else we have.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
© 2015 - 2024 Conservative Institute. All Rights Reserved.