Draining The Swamp

For today’s “One First,” I wrote about the law and high politics of disqualifying former President Trump—and how the Colorado Supreme Court’s decision, right or wrong, puts the U.S. Supreme Court into quite a bind.

This may not be a popular take, but I hope you’ll still read it: pic.twitter.com/QRclcyt0NV

— Steve Vladeck (@steve_vladeck) December 21, 2023

 Steve Vladeck makes some very good points regarding Sec. 3 of the 14th Amendment:

Section 3 of the Fourteenth Amendment applies to the presidency. (Robert E. Lee could not have run for president in 1868.) 

Section 3 is “self-executing,” meaning that it can be enforced without some prior adjudicative proceeding (like a criminal prosecution). That’s what allowed the House and Senate to refuse to seat putative members elected from southern states who they determined had engaged in insurrection during the Civil War. (And there’s also the last sentence of Section 3, which empowers Congress to “remove” the disability that had—presumably—previously applied.)

One interesting problem with the professor’s analysis is this:

Some of it might also be a problem of Jack Smith’s making, since the criminal indictment against former President Trump arising out of January 6 pointedly does not include an “insurrection” charge, a conviction on which would have itself disqualified Trump.

Why is that a problem? Because his analysis of the problem this case represents for the court is solved only if the court finds Trump did commit insurrection, but sec. 3 doesn’t apply to the POTUS, or it is not self-executing. (Vladeck doesn’t argue for this result, so much as argue it’s the likeliest outcome, largely because it keeps the court out of putting a thumb on the scale in a Presidential election, a la Bush v Gore).

But if Smith had charged Trump with insurrection the court couldn’t find him guilty as a matter of law for purposes of the 14th. Imagine the backlash then.

As a practical matter the court may be precluded from that determination anyway since, as the professor’s argument goes, this decision is necessarily a political act by the court. (And that’s a feature, not a bug.) If it is, the court puts a thumb on the scale in popular opinion if it rules Trump guilty of insurrection whether or not he stays on the Colorado ballot. He isn’t charged with that crime in D.C., but how much of the public will make that distinction in the D.C. case, especially if Trump is found guilty in D.C.? And how could the court issue any ruling on appeal of a D.C. verdict that would be considered fair? 

And if the court rules sec. 3 is not self-executing? Same problem; i.e., Bush v Gore all over again.

Some of this problem is of the court’s own making. As the professor points out, the court has little or no goodwill in the public at present, thanks largely to following Alito and Thomas. I would argue Scalia was no better at jurisprudence than them, but he was wiser about how to wield it. If the Roberts Court is caught now between a rock and a hard place, they are hoist on their own petar.

And that’s not a good thing for the country.

Vladeck calls this case a swamp. It is a swamp, indeed.