“Nice Country. Be A Shame…”

Legal expert sounds alarm about one 'particularly disturbing' part of Trump's new filing https://t.co/TVtLXi580D

— Raw Story (@RawStory) January 20, 2024

On Thursday, Trump's lawyers filed brief with the Supreme Court “to put a swift and decisive end” to the resistance he's facing to prevent him from appearing on the 2024 presidential ballot after falling short in the 2020 election against President Joe Biden. 

In it, Trump said him being banned would “threaten to disenfranchise tens of millions of Americans and ... promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots.”

Alina Habba argued to Judge Kaplan that there is no “causal link” between Trump’s statements about E. Jean Carroll and “the damages she claims to have received.” By damages, she specifically means death threats. CNN reported her argument this way:

"Trump has argued that Carroll immediately began receiving negative messages after an excerpt of Carroll’s book containing the assault allegations was published on New York Magazine’s website – hours before Trump issued his first statement. His attorneys argued Trump shouldn’t be held responsible for what other people did."

Trump is making the inverse of that argument to the Supreme Court. He still won’t accept responsibility for his statements, but he says that applying the 14th Amendment to him will disenfranchise millions, and is an outrageous act by his political enemies which will lead to violence. In short, he’s working hard to inflame the very people he then warns the Court will erupt into violence if the Court does not back his position. And he’s implicitly standing behind his argument that he shouldn’t be held responsible for what other people might do. He defies you to establish a causal connection, arguing in the Carroll case it cannot be done, so the jury should not be allowed to do it.

Which, of course, is precisely what a jury is allowed to do: to find, upon relevant and allowed evidence, that such a connection exists. That’s a question of fact, not a question of law. It is also a finding of fact in the Colorado case. The Supreme Court can find the law was misapplied in Colorado; it should not find the facts were unfounded.

Trump doesn’t want the jury in New York to be allowed to find any facts against him, but he wants the Supreme Court to find the facts too dangerous to uphold Colorado’s decision. In the Supreme Court, Trump is assuming the connection he says cannot be found in New York, but he’s trying to turn it into a legal argument, or at least an excuse to rule in Trump’s favor. He wants the connection, but not the responsibility for the connection. It’s a remarkably hypocritical stance, but it is Trumpian to the core.

And that’s the fundamental problem of Trump. He’s not a danger, because he isn’t that important or powerful. He is, in fact, as American as apple pie. His lies are a legacy of the colonies, when all manner of lies were told about Benjamin Franklin by his enemies (to name just one example). Nothing Trump has done is unique. He deserves to be treated with disdain, and discarded like a national bad habit, but he’s not sui generis or a unique threat to American social order.

He also deserves to be subject to the 14th Amendment. But I really don’t think that will happen. The damage there will be inflicted by the Supreme Court.