Redburn Reads, Jan. 1, 2024 (Trump Insurrection Edition--with bonus)

Friends,

Wouldn’t it be nice if Donald Trump simply disappeared? I think that’s why so many people I know are drawn to support the decision by the Colorado Supreme Court to bar Trump from running for office on the grounds that he violated the 14th Amendment to the Constitution for seeking to overthrow the 2020 election. 

It’s tempting, isn’t it? After all, Trump is an insurrectionist, as the Colorado court rightly ruled and, as we sometimes forget, a majority of both Houses of Congress found in his second impeachment. Fifty-seven Senators, including seven Republicans, voted him guilty of insurrection, short of the two-thirds majority required to convict, but still a clear statement of his guilt.  

At the same time, the legal foundation for barring Trump is quite solid, as a number of legal scholars have argued. J. Michael Luttig, a retired conservative federal appeals, even hailed the Colorado decision, and that of the Maine Secretary of State, as “unassailable” interpretations of the Constitution.

Above all, Trump poses a unique threat to our democracy, as Robert Kagan wrote recently in a widely circulated opinion piece for the Washington Post.

Let’s stop the wishful thinking and face the stark reality: There is a clear path to dictatorship in the United States, and it is getting shorter every day. In 13 weeks, Donald Trump will have locked up the Republican nomination. In the RealClearPolitics poll average (for the period from Nov. 9 to 20), Trump leads his nearest competitor by 47 points and leads the rest of the field combined by 27 points. The idea that he is unelectable in the general election is nonsense — he is tied or ahead of President Biden in all the latest polls — stripping other Republican challengers of their own stated reasons for existence. The fact that many Americans might prefer other candidates, much ballyhooed by such political sages as Karl Rove, will soon become irrelevant when millions of Republican voters turn out to choose the person whom no one allegedly wants. . .

What is certain, however, is that the odds of the United States falling into dictatorship have grown considerably because so many of the obstacles to it have been cleared and only a few are left. If eight years ago it seemed literally inconceivable that a man like Trump could be elected, that obstacle was cleared in 2016. If it then seemed unimaginable that an American president would try to remain in office after losing an election, that obstacle was cleared in 2020. And if no one could believe that Trump, having tried and failed to invalidate the election and stop the counting of electoral college votes, would nevertheless reemerge as the unchallenged leader of the Republican Party and its nominee again in 2024, well, we are about to see that obstacle cleared as well. In just a few years, we have gone from being relatively secure in our democracy to being a few short steps, and a matter of months, away from the possibility of dictatorship.

But it still strikes me as a mistake to bar Trump from running. Risky as it may be to go through an election between Trump and Biden, Trump needs to be defeated in a free and fair election if we want to secure our democratic system. I rarely agree with Chris Christie, but I think he is right in declaring that keeping Trump off the ballot will “turn him into a martyr.” 

One of the first to challenge the wisdom of the Colorado ruling was Jonathan Chait, who was initially heaped with abuse on the left for his short Dec. 20 essay for New York magazine’s Intelligencer. But his view has since become more widely accepted.

The timing of this decision is important context to its democratic legitimacy. If this ruling had come a year earlier, the Republican Party would have had time to organize a campaign built on the assumption Trump would be ineligible. But a month away from the first primary is late to change the rules of the game.

I am not arguing the timing rules out legal intervention. Trump is obviously facing several potentially adverse legal rulings. But most of those crimes are unambiguous, and the timing was determined by Trump himself, who deliberately set out to drag out the legal process as long as possible, specifically in order to force the rulings into the presidential campaign so that he could call it illegitimate.

What I’m arguing instead is that the timing of the court’s ruling makes it more imperative that its reasoning be unassailable. And the conclusion that Trump’s attempt to secure an unelected second term was “insurrection” isn’t solid enough to bear the weight of the outcome it supports.

To deny the voters the chance to elect the candidate of their choice is a Rubicon-crossing event for the judiciary. It would be seen forever by tens of millions of Americans as a negation of democracy. It is not enough that their belief is plausibly wrong or likely wrong. It must be incontrovertibly wrong to support such a momentous step.

I suspect the Supreme Court — which is more a political body than a legal body in major issues like this — will blanch at taking such a step, and I think that judgment would be correct.

The Supreme Court may soon have to confront a consequential and potentially bruising case. Chief Justice John G. Roberts Jr. will doubtless seek consensus.

Credit...Kent Nishimura for The New York Times

I don’t have a lot of faith in the Supreme Court, but one way or another, the Court is going to set the ground rules for the 2024 election. Not only must it settle the question raised by the Colorado and Maine rulings, it must decide whether to allow the various criminal cases against Trump to proceed. 

If the High Court doesn’t act quickly it will, de facto, be ruling in Trump’s favor because any significant delay would allow Trump to string out the cases until after the election. Even if the Court rules that Trump is not immune from prosecution, any significant delay would mean, if Trump wins, he will simply stop the Justice Department from proceeding, or pardon himself from any federal convictions. And if he loses the case in Georgia, where his pardon power is theoretically moot, he can simply ignore the ruling because in Trump’s America there won’t be any institution capable of enforcing the law.

In a thoughtful guest essay for The New York Times, legal experts Stephen V. Mazie and Stephen I. Vladick offer a persuasive outline for the Supreme Court. They suggest that the Court should allow Trump to appear on the ballot but make clear that it can be tried for his crimes in the cases already underway and scheduled for trial this year.

A generation after the Supreme Court stepped into a disputed presidential election, America is experiencing a creeping sense of déjà vu. Twenty-three years ago, a bare majority of the justices halted a recount in Florida, effectively handing the presidency to George W. Bush.

The specter of Bush v. Gore, the case that stands as a marker of how not to resolve searing political disputes, looms large as the Supreme Court is being called on to address controversies with profound implications for the fortunes of the Republican front-runner in 2024. . .

Yet the multiplicity of cases affords the justices an opportunity to avoid penning themselves in still further if they keep an eye on how potential decisions will, collectively, shape the political landscape. The point is not that getting the underlying legal questions right is irrelevant. But when the stakes are this high and the legal questions are novel, the justices have a duty to hand down decisions that resonate across the political spectrum — or that at least avoid inciting violence in the streets. That’s not subverting the rule of law; it’s preserving it.

Extraordinary times call for a court that embraces the art of judicial statecraft.

A universe in which the court somehow splits the difference — for example, keeping Mr. Trump on the ballot while refusing to endorse (if not affirmatively repudiating) his conduct and spurning his kinglike claim to total immunity — could go a long way toward reducing the temperature of the coming election cycle. Such an outcome could also help restore at least some of the court’s credibility.. . .

Are the Justices thinking along these lines? Nobody knows, but Adam Liptak, the NYT’s superb, authoritative reporter on the Court, suggests that they at least understand the stakes. 

An appeal of the Colorado ruling has already reached the justices, and they will probably feel compelled to weigh in. But they will act in the shadow of two competing political realities.

They will be reluctant to wrest from voters the power to assess Mr. Trump’s conduct, particularly given the certain backlash that would bring. Yet they will also be wary of giving Mr. Trump the electoral boost of an unqualified victory in the nation’s highest court.

Chief Justice John G. Roberts Jr. will doubtless seek consensus or, at least, try to avoid a partisan split of the six Republican appointees against the three Democratic ones.

He may want to explore the many paths the court could take to keep Mr. Trump on state ballots without addressing whether he had engaged in insurrection or even assuming that he had.

Among them: The justices could rule that congressional action is needed before courts can intervene, that the constitutional provision at issue does not apply to the presidency or that Mr. Trump’s statements were protected by the First Amendment.

“I expect the court to take advantage of one of the many available routes to avoid holding that Trump is an insurrectionist who therefore can’t be president again,” said Nicholas Stephanopoulos, a law professor at Harvard.

Agreeing to hear the case is one thing. Resolving it is another. As the Colorado Supreme Court recognized, there are at least eight discrete issues in the case, and the voters challenging Mr. Trump’s eligibility must prevail on all of them.

“For Trump to win, he only needs to win on one issue,” Professor Muller said. “There are many options at the court’s disposal.”

On the other hand, leading conservative law professors who have examined the original meaning of Section 3, which was adopted after the Civil War, have recently concluded that it plainly applies to Mr. Trump and bars him from another term. Such originalist arguments generally resonate with the court’s most conservative members.

But other considerations may prevail.

“As much as the court may want to evade politics in its decisions, it’s unavoidable,” Professor Muller said. “The best it can do right now is try to achieve consensus to avoid the appearance of partisanship.”

Whatever the Court decides, it’s going to be a rough year. As I wrote in my last dispatch, we are going to have to live with wild uncertainty until the election. It is easy to fall into despair, but I hope, like Paul Gastris, the editor of The Washington Monthly, to cut through the noise to offer the smartest thinking I can find. One place to start is to read and support TWM, which operates on a shoestring budget. 

A lot of people are looking to the New Year not with a sense of promise but of dread. That’s understandable: the idea that 2024 might be the year Americans vote away their democracy is dreadful to contemplate. And the possibility can’t be wished away. It’s real. 

But some of our angst is because the media too often plays to our fears—because fear sells—while downplaying evidence to the contrary. 

If you’re a reader of the Washington Monthly, you know that’s not how we operate. Two years ago, Monthly Contributing Writer Robert Shapiro began presenting evidence of what he called the “Biden Boom.” In more than a dozen stories, he revealed an economy far stronger than the one portrayed in the press. When mainstream economists were predicting a recession because that’s what their models were telling them—and journalists were treating their words as oracular—Shapiro, a former undersecretary of commerce, was looking at real-time data and saying, Not happening.  

When reporters got swept up in polling showing a “red wave” in 2022, Washington Monthly Politics Editor Bill Scher looked at the same surveys and history and said, I don’t think so. When pundits wrote panicky stories this year about how House Republicans would push the government into default, Scher scrutinized House Speaker Kevin McCarthy’s words and incentives and said, This guy wants to cut a deal. 

Washington Monthly writers got these stories right, not because they were clairvoyant but because they did a better job interpreting what the current evidence was saying and not saying. Right now, the polling averages have Joe Biden running slightly behind Donald Trump. But if you’ve been reading Shapiro and political analyst Michael Podhorzer in the Monthly, you know that, historically, presidential polls this far ahead of an election are of little predictive value. And to the extent they mean anything, you know from Scher’s newsletter that Trump and Biden have traded the polling lead five times this year. That’s more than during the last four presidential contests, indicating that the race is close and swing voters still matter. . .

 Look, no one can tell you who will win the presidency in 2024. It’s essential to prepare yourself, intellectually and emotionally, for the worst. But it’s even more important to keep your wits about you and not get spooked by the panic of the herd. 

I’m going to be switching over to Substack soon, in part because Tiny Letter is disappearing as a platform. But I look forward to continuing my efforts, modest as they may be, to help us all keep our wits.

Take care,

Tom 

P.S.

P.S. I couldn’t end without sharing a thoughtful and moving graphic essay in the New York Times by Mira Jacob on life's joys and sorrows.  It was sent to me by Ken Hartnett, who helps run an on- and off-line discussion group in the New Bedford area. I don’t agree with everything in the essay, but at this moment, it moved me to tears. Here are a few scenes. . .
 

Credit...

Illustrations by Mira Jacob; source photographs via Adobe Stock and Getty Images.

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