GELFAND’S WORLD - There is currently a court proceeding that is supposed to decide whether Colorado can deny Donald Trump the right to run for president on the state's ballot. The attempt to deny Trump the right to be a candidate is ostensibly based on wording in the 14th Amendment to the Constitution, passed in the post-Civil-War period:
"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
Based on this wording, people in several states have argued that Trump should be disqualified on the basis of the wording "shall have engaged in insurrection or rebellion." The Colorado case is the first where an attempt to deny the ballot to Trump is being contested in the courts.
It is true (and obvious) that Trump has fulfilled the first part of Section 3, in that he took the oath of office to support the Constitution, but this is irrelevant. Every other president and senator and congressman has done the same. The relevant question is the part about engaging in insurrection.
I think we can ignore the wording about "or rebellion" as obviously untrue, where rebellion would imply being a part of an army opposed to the United States or joining a government supporting that armed rebellion. At the time it was written, this passage clearly pointed to participation in the Confederate States of America as a soldier or government official. Think Robert E. Lee or Jefferson Davis. Nobody is going to accuse Trump of being a soldier, and there is currently no Confederate States of America.
So the question before the court and available to public opinion is whether anything Trump did in the days leading up to and following January 6, 2021 rises to the level of insurrection.
I would argue that it is not proved. Trump has not been convicted of any federal crime that could be considered to be insurrection. In fact, he has not been convicted of any federal crime.
Now it is true that some legal scholars argue a little differently. They say that it is not necessary to convict Trump of insurrection in order to apply the Constitutional language. But even there, the ability to deny Trump the right to run for office depends on reaching the conclusion that what Trump did in that period surrounding January 6 was an act of insurrection. As in so many things, the next question is who gets to make that determination. Can some state official with authority over creating ballots (generally the Secretary of State), based on drawing his own conclusions, determine that (1) Trump engaged in insurrection and (2) leave Trump off the ballot?
I think that civil libertarians ought to be properly concerned, fearful even, over this extension of one state's authority to deny access to the ballot. The default position for the civil libertarian is that unless a statute clearly makes something illegal, we can't prosecute someone. To put it even more clearly, our country does not allow the government to just make up new crimes in order to charge somebody for something that has already occured. The Constitution refers to such charges as ex post facto, and forbids them.
The current claims against Donald Trump in Colorado are not for crimes, but merely argue a finding that makes Trump ineligible to have his name on the ballot. It is, in effect, a civil remedy for what would be a crime of some sort, but has not actually been proved through criminal filings and due process.
Would things be different should Donald Trump be convicted of the crimes alleged in the D.C. federal court filing? Maybe they would. But that case is yet to be decided so, as a point of law, there is no determination as yet.
There is one more point which is a bit subtle, but worthy of consideration. At the time of its passage, the 14th Amendment referred, if nothing else, to a war which was intended to abolish the authority of the United States of America within a substantial part of its land mass. Within those confederate states, the intent was that there would be no President of the United States of America, but rather a president of the Confederate States of America. Compare that to the January 6, 2021 events, where the intent was not to abolish the authority of the President of the United States. It was merely an argument over the actual identity of the person who would be the next President of the United States. In this sense, it was not the intent to remove or modify presidential authority, but merely an argument over the results of complicated procedures for deciding on that person.
I personally am reasonably well convinced that Donald Trump committed crimes during that period of time -- indeed that he has been committing crimes for much of his adult life. But it is the fault of the justice system that he was not properly charged and tried in the past, and that it took the public scrutiny that comes with being president to finally generate the criminal proceedings. And one more thing. The Constitution does not forbid a criminal from running for president, except in well defined circumstances such as being impeached and convicted by the Senate.
One more thing about the idea of supporting civil liberties. The civil libertarian believes that it is necessary to uphold the rights of all people, no matter how loathsome they may be. This does not mean that bad people don't go to prison, it just means that we have to make sure that we are prosecuting the right ones. Even the loathsome have to be granted due process, because we want to guarantee due process to all of us.
And by the way, I'm making no denials about Donald Trump being loathsome. All you have to do is read his latest rants. Donald Trump, in the face of massive evidence of his criminal violations, blames it all on a vast hateful conspiracy aimed at himself. This is the story of someone who simply cannot understand the idea of personal behavior being wrong or criminal. If you are a part of the Department of Justice and have charged him with some crime, it must be based on personal animosity rather than the crime itself. Psychiatrists have terms for this kind of thinking.
Coming back to the subject in question, should we allow somebody this irritating and dishonest to run for president?
That's our system, where there is a presumption of innocence until guilt is proven.
Some people will point out that Donald Trump is the last person worthy of such liberties, considering his behavior with regard to the Central Park Five. Well, that is also the point: In protecting civil liberties from people like Donald Trump, we have to guarantee civil liberties to all people, including Donald Trump.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected].)