The threat of Trump-inspired violence will grow

What will the pundits who insist on appeasement now say next November?

For years, America's journalism and political elites have sneered that those seeking to apply the law and the constitution to aspiring despot Donald Trump are seeking an undemocratic “magic bullet” that will let them avoid the One True Way to defeat Trump and avert fascism: Victory at the ballot box. They are precisely wrong, and they are wrong in every regard.

The most recent flurry of very serious commentary is illustrative. When the Colorado Supreme Court ruled last week that the 14th Amendment to the constitution means what it very clearly says about traitors and insurrectionists being disqualified for high office and thus Donald Trump is ineligible to appear on Colorado ballots next year, the commentariat leapt as one to demand that the United States Supreme Court overrule Colorado. In just one week, the New York Times published three separate guest essays urging the U.S. Supreme Court to overturn the ruling – plus another by an in-house Times columnist seeking the same.¹ Four Washington Post columnists, plus the Post’s own editorial board, joined in the chorus. And, of course, they were echoed by (and echoed) pretty much every Republican politician you can think of.²

The news media’s one-sided coverage extends beyond the opinion pages. Here’s the New York Times’ hard news side today:

Completely omitted from this article: Any acknowledgment that other people think granting Trump a special exemption from a clear constitutional prohibition on insurrectionists gaining the presidency might erode faith in American’s elections and constitutional order. Only one side of the argument is allowed in the pages of the New York Times. And it’s the side with the worst arguments.

Many Americans would disagree with disqualifying Trump, but that shouldn’t matter.

In the Times, a Yale professor urges the Supreme Court to unanimously allow Trump to appear on the ballot because “what actually happened on Jan. 6 ... is still too broadly contested. ... many Americans still believe Mr. Trump did nothing wrong.” Two other Times guest essayists argue “the justices have a duty to hand down decisions that resonate across the political spectrum,” as if such a thing is even possible in such a case.

But even if it was possible, how would that make sense as a standard? Inherent in the existence of the 14th Amendment’s prohibition on insurrectionists and traitors ascending to high office is the premise that such a candidate might have a large number of supporters. After all, there would be no need for disqualifying such a candidate from office in the absence of a large number of supporters. The 14th Amendment exists precisely because of the possibility that a participant in insurrection could subsequently amass enough followers to have a chance to win election. It is perverse to invoke the very reason the amendment exists as a reason not to enforce it.

“Many Americans” believe all kinds of stupid nonsense Donald Trump asks them to believe. It makes absolutely no sense to give them veto power, in this or any other matter. Unanimity is certainly impossible; broad consensus is likely impossible, as well. (Note, too, that the writers don’t seem to mind that many other Americans would disagree with the U.S. Supreme Court stepping in to restore Trump to the ballot. Apparently only one group of Americans is worthy of veto power over the Court’s actions, or the constitution.)

If Trump is disqualified, his supporters might turn violent, but we shouldn’t preemptively surrender to that threat

One Times essayist writes that the Supreme Court should restore Trump to the ballot because “rejecting Mr. Trump’s candidacy could well invite a repeat of the kind of violence that led to the prohibition on insurrectionists in public life in the first place” while others add that the Supreme Court has a duty to “avoid inciting violence in the streets.”

This is a grotesque bit of blame-shifting. If Trump’s supporters turn violent, Trump — not the Supreme Court — will have invited and incited them to do so. And there’s a pretty good chance that will happen sooner or later. Perhaps sooner and later. We should take this possibility seriously — indeed, I have been publicly warning of it since 2016, at least. But taking it seriously does not mean — cannot mean — surrendering to it.

Just look at the logic of that argument: “rejecting Mr. Trump’s candidacy could well invite a repeat of the kind of violence that led to the prohibition on insurrectionists in public life in the first place.” Violent insurrection is so bad that we prohibited insurrectionists from later serving in high office, but if they threaten another insurrection we should … discard the prohibition?

How does that make sense? It doesn’t. It doesn’t makes sense logically, it doesn’t make sense as a matter of justice, it doesn’t make sense as a way to govern a nation, and it doesn’t make sense as a way to avoid right-wing political violence. If we keep showing the authoritarian right that they can deploy violence and the threat of violence to seize power, they’re going to keep doing it.

The Supreme Court restoring Trump to the Colorado ballot “could go a long way toward reducing the temperature of the coming election cycle,” an essay in the Times declares, apparently written from underneath a rock on Neptune. The temperature’s gonna be hot, and the rabid army Trump has assembled isn’t going to chill just because one Supreme Court ruling goes their way.

The ballot box is the “right way” to stop Trump (no, it’s likely necessary but also likely insufficient)

When they aren’t sneering that those who favor holding Trump legally and constitutionally accountable for his actions are seeking a fantasy “magic bullet” so that they don’t have to do the hard work of winning elections, the pundit class likes nothing better than to insist the “right way” to stop Trump is at the ballot box: “The only thing that will, finally, make Donald Trump go away is a resounding, historic and final defeat at the polls. That’s something the American people have to accomplish, not a court”³ … “The truth is that this country has to be allowed to save itself. The Supreme Court must act, but only to place the burden on Mr. Trump’s political opponents to make their case in the political arena.”⁴ “The only way out of this nightmare is through the ballot box.”⁵

This elite conventional wisdom is precisely wrong.

First, I’ve never encountered a single real-life person who thinks that legal accountability for Trump or his followers is any kind of magic bullet that will solve all our problems and therefore we shouldn’t try to win elections. To the contrary, there has been pretty broad interest in defeating Trump electorally. Indeed, the American people have rejected Trump at the ballot box every single time they’ve had the opportunity: Trump lost the popular vote in 2016 by 3 million votes but attained the presidency anyway; voters then handed Trump’s Republican Party a shellacking in the 2018 midterms, to the tune of an 8-point Democratic advantage in the popular vote for the House of Representatives and a 41-seat gain; voters then rejected Trump in 2020 by a 7-million-vote margin. Trump’s opponents know damn well the importance of beating him at the ballot box, and we’ve done it time and time again.⁶

But it isn’t enough. It can’t be the only thing we do. We keep beating Trump and he continues to be a problem, in part because our elites and institutions keep propping him up while insisting it’s up to the American people to stop him. In truth, it’s “just beat him at the ballot box” that’s the fantasyland “magic bullet” hope. Beating him at the ballot box is necessary, but not sufficient. We beat him last time, and he inspired his supporters to try to hang Mike Pence.

Advocates of legal and constitutional accountability for Trump understand that the right way to combat fascism is not at the ballot box, it is with every tool at your disposal, including but not limited to the ballot box. The fascists aren’t attacking America on a single front, and we cannot combat them with one hand tied behind our back.

And that’s what the punditocracy is insisting on — it is demanding we combat Trump’s fascism with one hand tied behind our back. We have a constitutional prohibition on insurrectionists serving in government office precisely to protect against a figure like Trump. Refusing to honor that prohibition and instead placing all our eggs in the electoral basket is insanely risky. This is not a game.

“It’s the only way I can be satisfied. If I use my right hand, over too quickly.”

The disqualification of insurrectionists from office is not merely a constitutional tool available to us: It is an important principle to uphold. If there is no penalty for a direct attack on democracy save the possibility of losing a future democratic election, you do not have a democracy. The rules of democracy cannot be merely for show.

Donald Trump is running for president largely in hopes of avoiding legal accountability for his crimes. He believes that by running for president he can delay his trials — aided by pundits who echo his nonsense claims that it is unfair for his trial to proceed while he is campaigning — and that if he wins the presidency he can order an end to any federal prosecutions and/or pardon himself. Yes, Trump wants power; he wants to be a dictator. But most of all he wants to avoid dying alone in a jail cell. As long as the presidency is a possibility, Trump will never stop pursuing it, because he views it as a get-out-of-jail-free card.

But what if the presidency isn’t a possibility — what if we applied the clear meaning of the 14th Amendment to him and declared him ineligible? What then? Yes, one possibility is that he might incite violence in an effort to reverse that declaration, or in hopes of overthrowing the government, or out of pure impotent rage. Another possibility is that he might flee the country, living out his days in exile. That wouldn’t be a great outcome; he’d avoid justice and would probably continue inciting violence and causing mischief from abroad, and his exile wouldn’t end the threat of right-wing authoritarianism at home, which preceded Trump and will outlive him. But at least we would have taken one of many possible bad outcomes — a Trump presidency — off the table.

When will the appeasement end?

Here’s a question: When can we apply the constitution and the law to Trump?

A whole lot of Very Serious People are taking to the op-ed pages of the nation’s newspapers to insist that we must grant Trump an exemption from the constitutional prohibition on insurrectionists taking office for fear that if we do not he and his supporters might turn violent (again.) But I haven’t seen a single one of them indicate when this appeasement ends. When will they think it’s safe to apply the rules to Trump? There are dozens of ways he and his followers will seek special treatment between now and January 20, 2025; dozens of ways he’ll try to break the rules. If he’s defeated (again) he’ll (again) try to force phony recounts or the disqualification of legitimate votes (again); he’ll try to cajole or coerce election officials to do his bidding. He will try to take the White House despite losing it. We know he will do this because he has done it before, and because we are not idiots. All along the way there will be civil servants, elected officials, and judges with decisions to make. When will the punditocracy decide it is okay for them to make the legal, constitutionally, and factually justified decisions instead of giving in to the threat of violence?

We are told that giving Trump a constitutional exception this time could “lower the temperature” and is necessary to prevent “violence in the streets.” Are we supposed to believe that the temperature will be lower next November? Preposterous. The temperature does not decrease as elections approach; it increases. Are we supposed to believe right-wing violence is less likely when Trump is on the cusp of returning to the White House, with only one more hurdle remaining, than it is today, a year out? Preposterous.

So when someone insists that the Supreme Court must overturn Colorado’s decision not to grant Trump an exemption from the 14th Amendment because otherwise his supporters might commit acts of violence, the first question you should ask them is simple: When does this appeasement end? When will the threat of violence be less, or easier to stand up to?

And what if it isn’t?

1. The New York Times has not published a single opinion piece agreeing with the Colorado ruling or urging the U.S. Supreme Court to uphold it.

2. What Liberal Media?

3. https://www.smh.com.au/world/north-america/the-voters-not-the-courts-should-determine-trump-s-fate-20231221-p5et2z.html

4. https://www.nytimes.com/2023/12/22/opinion/trump-colorado-ballot-ban.html

5. https://www.damemagazine.com/2023/10/24/the-14th-amendment-will-not-save-us-from-donald-trump/

6. Also worth noting: Donald Trump never had a net-positive approval rating a single day of his presidency, finished with the lowest average approval rating of any president in recorded history, and has been underwater in approval every single day of his post-presidency.