This week, multiple landmarks will be reached in the continuing legal battle over whether the Democrats can use malicious prosecution to do an end-run around democracy itself. Firstly, the DC Circuit Court of Appeals has already ruled unanimously that President Trump’s claim of presidential immunity for his conduct on January 6, 2021 doesn’t apply, setting up a potential showdown before the Supreme Court.
And speaking of the Supreme Court, on Thursday, the highest court in the land will hear oral argument on the question of whether President Trump can be excluded from state ballots on the grounds of engaging in “insurrection.” And let’s be clear: this is the real question that will decide whether the Democrats’ lawfare strategy stands or falls. The Supreme Court is already considering the question of whether the charges against defendants in the January 6 trials – potentially including President Trump himself – are even legitimate. If they find for the defendants, then Special Counsel Jack Smith’s case will likely fall apart, rendering the question of immunity academic.
But the idea that a major party’s presidential candidate can be removed from the ballot for engaging in the nebulously defined crime of “insurrection” is far more alarming. In making this case, the Left’s legal wing is reaching very far back in American history, to the Civil War, after which Congress thought it prudent to stop anyone who had fought for the Confederacy from holding office via the Constitution itself. This was the correct course of action at the time, largely because the attempt by Southern states to secede from the Union was – unquestionably – an insurrection: a literal armed rebellion which led to the deaths of about 1.5 million Americans. In other words, the bar for what can be considered an insurrection, given the one precedent in which this Constitutional provision unquestionably applies, is very, very high. To apply it any other way is to invite the criminalization of democracy itself.
It is now that we must state several obvious facts: President Trump did not attempt to start his own country. He did not send his voters into battle with the US military. He did not declare war on the federal government. He left office grudgingly, but leave it, he did. And he is attempting to regain it not through armed rebellion, but through the same electoral process by which he won it, in the first place. What’s more, the supposed “insurrection” he is supposed to have engaged in, the January 6th protests, is an “insurrection” which he, himself, tried to stop in his public statements. And as for calling January 6th an “insurrection” in the first place? That definition of the term would render not just the J6ers, but a huge chunk of left-wing protesters ineligible for office, starting with anyone and everyone who was involved in the creation of the infamous Capitol Hill Autonomous Zone (CHAZ) in Seattle Washington. CHAZ, remember, did try to set itself up as an autonomous, self-governing unit – in other words, as a separate nation state – like the Confederacy. Granted, it collapsed a lot faster, and with far less bloodshed than the Confederacy, but what can we say? The first time is tragedy and the second time is farce. Except this farce isn’t funny: at least one teenager was shot to death because Antifa blocked cops from coming into their “country.”
January 6, on the other hand, falls well short of that, starting with the fact that most protesters appear to have been both unarmed and without violent intentions (in fact, the main casualty was a woman shot by the police). Certain weaselly legal “experts” (some of whom aren’t even American) have argued that an “insurrection” is any situation where the authorities are attacked or official proceedings are impeded by protest. By this standard, any protester who has ever thrown a punch at a police officer, even by mistake, is an insurrectionist and would be barred from holding office in the United States. By this standard, Jamaal Bowman (D-NY) of the infamous fake fire alarm is a rebel against the United States, legally indistinguishable from Robert E. Lee and Jefferson Davis. While it might be comforting to think that the childishness of “Squad” members like Bowman has signed away their right to hold office, we are not prepared to go the route of authoritarians like Poland’s Donald Tusk, and for a good reason: such precedents are enforced against the Right far more than they are against the Left. A Bowman or an AOC in congress is a disagreeable but acceptable price to pay to stave off the Gulags and reeducations camps they pine for.
We are not legal experts. We do not pretend to a complete knowledge of every controversy around which the Colorado case revolves. We also are quite sure, based on previous election law cases of similar magnitude, that the legal issues will be treated as almost beside-the-point by the American people. When the Supreme Court decided Bush v. Gore in favor of former president George W. Bush along party lines, it was seen by many – regardless of the legality or illegality of the decision – as a partisan thumb being placed on the scale. It cast a pall over former President Bush’s first term, even as repeated audits showed that he did, in fact, win that election.
Moreover, given that this Supreme Court appears achingly concerned with the counter-majoritarian difficulty of its role as an unelected body which nevertheless must check the decisions of elected figures, they surely must realize that to rule the overwhelmingly dominant Republican candidate for president out of contention for the presidency is to court disaster. Their decision to temporarily allow the federal government to cut down razor wire in Texas has prompted a legal standoff between Texas and the federal government; if a temporary injunction can do that, then the Supreme Court must know that allowing democracy to be destroyed under color of law could lead to a real crisis. Even avowed anti-Trumpers like New York Times columnist David Brooks have pled with the court to rule unanimously for Trump, citing the risk of political violence if they do not. Because Brooks – and, we suspect, the Court itself – knows how fragile the American experiment is at this moment, and also knows that for all the instinctual loathing his fellow elites feel for President Trump, the man is no Jefferson Davis.
So, let us pray that when oral argument arrives this week, the court shows blanket skepticism of Colorado’s claims. Because this case is the proverbial sword of Damocles hanging over the very notion of American democracy, itself, and the Justices are the thread. Let us hope, for the sake of the integrity of America’s institutions, that they stop that sword from falling.
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