Loud (Political) Bark, Little (Legal) Bite
Trump's Disqualification Defenses "Doth Protest Too Little"
Not surprisingly, there’s a lot of political belly-aching and high-octane rhetoric every time a body dares give effect to the disqualification clause of the 14th Amendment:
“It’s an attack on democracy!”
“The voters have a right to decide!”
“Liberal courts and unelected officials at it again!”
These responses are often false on their face. (Conservative scholars have been the prime advocates of the disqualification clause). And they may or not make for good politics—so far, a majority (54%-35%) of Americans agree with the disqualification decisions. But none of these are legal arguments (as in, of a legal nature). And they would carry no weight before any responsible court.
Which is why to assess the actual legal argument against disqualification, it helps to see what Donald Trump and his allies are actually arguing in court. That also gives us a preview of what the Supreme Court will weigh when it decides the case.
Helpfully, Trump’s legal team just filed its cert petition with the Supreme Court challenging the Colorado decision. And this came only days after filing its challenge of the Maine Secretary of State’s decision to disqualify him from the Maine ballot. The Colorado Republican Party also filed a petition with the Supreme Court, laying out several arguments.
Scanning these arguments, what you quickly see is that amid all that political belly-aching, the legal arguments against disqualification remain surprisingly weak. And some would have truly absurd consequences if taken seriously.
But perhaps what sticks out the most is how half-hearted the core substantive argument is: that Trump did not engage in an insurrection. The Colorado Republican Party doesn't even attempt to make that argument(!), and Trump buries it late in his brief. Most of their arguments, in fact, are efforts to avoid addressing what you’d think would be the central question.
But in this case, you might say: they doth protest too little.
Let’s take a close look at the anti-disqualification arguments made in the Supreme Court petitions and the Complaint filed in Maine:
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