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The legalistic response to the rejection of law


That’s essentially what we’re presented with in this 2,000-word NYT opinion piece on whether Donald Trump is eligible to be president again, given Section 3 of the 14th amendment, which bars insurrectionists from holding federal office:

It’s not the legal questions that give me pause, though; it’s the political ones.

First is the matter of how Republicans would react to Mr. Trump’s disqualification. An alarmingly large faction of the party is unwilling to accept the legitimacy of an election that its candidate didn’t win. Imagine the reaction if their standard-bearer were kept off the ballot altogether. They would thunder about a “rigged election” — and unlike all the times Mr. Trump has baselessly invoked that phrase, it would carry a measure of truth. Combine this with the increasingly violent rhetoric coming from right-wing media figures and politicians, including top Republicans, and you have the recipe for something far worse than Jan. 6. On the other hand, if partisan outrage were a barrier to invoking the law, many laws would be dead letters.

The more serious problem with Section 3 is that it is easy to see how it could morph into a caricature of what it is trying to prevent. Keeping specific candidates off the ballot is a classic move of autocrats, from Nicolas Maduro in Venezuela to Aleksandr Lukashenko in Belarus to Vladimir Putin. It sends the message that voters cannot be trusted to choose their leaders wisely — if at all. And didn’t we just witness Americans around the country using their voting power to repudiate Mr. Trump’s Big Lie and reject the most dangerous election deniers? Shouldn’t we let elections take their course and give the people the chance to (again) reject Mr. Trump at the ballot box?

To help me resolve my ambivalence, I called Representative Jamie Raskin of Maryland, who sits on the Jan. 6 committee and taught constitutional law before joining Congress. He acknowledged what he called an understandable “queasiness” about invoking Section 3 to keep Mr. Trump off the ballot. But Mr. Raskin argued that this queasiness is built into the provision. “What was the constitutional bargain struck in Section 3?” he asked. “There would be a very minor incursion into the right of the people to elect exactly who they want, in order to obtain much greater security for the constitutional order against those who have demonstrated a propensity to want to overthrow it when it is to their advantage.”

The contours of the case for Mr. Trump’s disqualification might get stronger yet, as the Justice Department and state prosecutors continue to pursue multiple criminal investigations into him and his associates and as the Jan. 6 committee prepares to release its final report. While he would not be prohibited from running for office even if he was under criminal indictment, it would be more politically palatable to invoke Section 3 in that case and even more so if he was convicted.

By contrast, what gives me pause is the complete absence of any discussion in this piece of exactly what legal process can be realistically envisioned that would lead to Trump being disqualified in this way. Section 3 is not magically self-executing, so the only ways in which it could be applied to him are via litigation, brought either by the DOJ or private individuals, or via some sort of legislation that would be general enough not to count as a bill of attainder.

It should be extremely obvious that none of these potential mechanisms are available, given the current composition of the federal courts, the Department of Justice, and Congress. Yet somehow this little detail doesn’t warrant a single mention in this long piece.

A better example of Elite Lawyer Brain would be difficult to adduce.

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