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When legal argument doesn’t help


Good comment from MIJ about the 14.3 disqualification argument:

Stipulate that The 14th Amendment applies. Assume also that this works it’s way through the courts in a timely manner and that SCOTUS upholds disqualification, both very big assumptions.
What’s the reaction? Can anyone believe that Republicans will accept this passively? I suspect that even many of the fellow traveler Republicans, the ones who dislike Trump but pull the lever anyway, may actually harden. It’s almost a certainty that the MAGA crowd will be provoked to violence. Personally I think we’re not going to avoid political violence one way or the other, the fever is too high. My hope that what violence may occur stuns people to their senses but it may only be a precursor to a terrible spiral.

I don’t suggest that fear of violence deter pursuit of disqualification but I do wonder what actually gets accomplished. The Luttigs and Tribes of this world want the inconvenience or even abhorrence of Trump put back in its box but I wonder if they’re not in denial about how deeply the anger, dysfunction, and fascism of the Republican Party penetrates. I wonder if there’s recognition that Trump is both a symptom and catalyst of far deeper problems in the electorate.

We have states that are no longer democracies, Wisconsin, Tennessee, my state of North Carolina, most of the states of the old Confederacy. We have large numbers of people who subscribe to the intolerance of Christian Nationalism and wish for autocracy or theocracy. Disqualifying Trump probably does nothing to address those problems other than offering catharsis for those desperately wanting Trump to be the problem rather than a symptom. Disqualifying Trump doesn’t ensure Biden wins the 2024 election, face it, any Republican would be an absolute disaster. And while I don’t think any reasonable person can question attempts to disqualify Trump as illegitimate, at least a third of this country would see disqualification as confirmation that constitutional order is illegitimate.

Disqualification is not going to be a surgical process that excises the cancer threatening or civic culture. It will be messy and sloppy, imagine if the resolution comes after the convention. It may not even lead to Trump going away. It could lead to Trump and his followers becoming even more defiant (maybe not the worst thing if you’re trying to precipitate or accelerate some grand final confrontation).

Disqualification may be the right thing to do but it’s delusional to believe it offers any sort of real closure. This country is in trouble. Our constitutional framework is outdated and antimajoritarian. A significant part of our populace is in denial about the threats of climate change and massive economic inequality while being reactionary to modernity. We are a house divided and disqualifying Donald Trump from political office, no matter how justified, will do little to resolve or even address our underlying problems. It’s certainly not something to pin one’s hopes to.

A broader point here is that if you’re going to disqualify the presidential nominee of one of the two major parties on legal grounds, they need to be non-controversial legal grounds, in the sense that there isn’t any real argument among non-crazy lawyers (obviously Kraken lady Lin Wood etc. don’t count) about the issue. For example, Arnold Schwarzenegger isn’t eligible to be president, because the disqualification argument isn’t in the grey zone in his case.

The Trump 14.3 argument is in a legal gray zone. There are good arguments both ways, which means that for practical political purposes it’s not something that can be used, because the knock-on effects would be terrible. Only if one were somehow sure that this was the only way to stop him from being re-elected would the risks of using this mechanism be worth it. Since that’s not the situation, it’s not worth trying, leaving aside that the current SCOTUS would never go for this, which it absolutely wouldn’t.

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