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Sam Sawyer, S.J.January 10, 2024
Former President Donald Trump speaks to the media at a Washington hotel, Tuesday, Jan. 9, 2024, after attending a hearing before the D.C. Circuit Court of Appeals at the federal courthouse in Washington. (AP Photo/Susan Walsh)

Oral arguments have just concluded in former President Donald J. Trump’s appeal asserting total immunity in the case about his attempts to falsely claim victory in the 2020 election, which culminated in the attack on the Capitol on Jan. 6, 2021. Of course, this is not Mr. Trump’s only court case. In addition to the various trials about retention of classified documents, hush-money payments and conspiracy to overturn election results in Georgia, he has also appealed the Colorado decision ruling that he is ineligible to run for president. That appeal has been accepted for hearing by the U.S. Supreme Court and is scheduled for oral argument on Feb. 8.

As Americans have learned or re-learned over the past few weeks, Section 3 of the 14th Amendment bars anyone from holding any office under the United States if they have taken an oath “to support the Constitution of the United States” and subsequently engaged in insurrection. Challenges asking for Mr. Trump to be taken off the ballot have been filed in many states, but thus far only Colorado and Maine have removed him.

It is hard to predict how the Supreme Court will respond. They could decide that since the 14th Amendment explicitly lists other federal offices but not the presidency, the president does not hold an office “under the United States” but is in some other constitutional category. Or they could hold that an election conspiracy leading to a riot at the Capitol is not equivalent to an “insurrection” in the sense meant by a post-Civil War amendment.

Or they could decide that the whole issue is a “political question” not subject to judicial resolution, or that in the absence of Congress providing a mechanism for implementing such disqualifications, courts should not be asked to invent one.

Or the court could find that Mr. Trump is indeed ineligible to hold office under the United States because he engaged in insurrection. Whatever legal principle the Supreme Court uses to resolve this case, we should all pray the decision is as close to unanimous as possible.

But none of Mr. Trump’s court cases can fully answer the challenge he has posed to American democratic norms and institutions.

During the 2020 campaign, the editors of America warned that Mr. Trump represented a “proven threat to the constitutional order.” While we could not have predicted that threat would be as grave as it proved on Jan. 6, nothing that has happened since offers any reason to withdraw or moderate those concerns.

In order to understand why the courts alone cannot handle these issues, it is worth thinking about the various ways that a healthier American democracy might have avoided needing the court to decide how the 14th Amendment applies to Mr. Trump.

First, Mr. Trump could have followed the example of every other losing presidential candidate in modern history, and conceded his loss once it was clear that all his legal avenues for victory were exhausted. Failing that, he could have been sufficiently alarmed at the chaos and violence his lies about the election unleashed to repent of his false claims and retire from political life for the good of the country. But Mr. Trump has not shown any inclination to distinguish between what is good for the country and what is advantageous for him.

The clearest legal mechanism for avoiding the present mess would have been for the Senate to convict Mr. Trump during his second impeachment and then to bar him from holding future office, as the Constitution allows them to do. But most Republican senators, following Majority Leader Mitch McConnell’s lead, decided that they need not vote to convict someone who was already out of office. (At the time, Mr. McConnell argued that Mr. Trump could and should face criminal liability in the future, an outcome Mr. Trump now argues that his impeachment acquittal precludes.)

Even after the impeachment failed, Republican leaders could have isolated Mr. Trump politically, at the cost of risking rejection by his base and suffering their own electoral losses. But with a few notable exceptions, such as Liz Cheney, Mitt Romney and Chris Christie, they have not found the courage to do so.

Thus the question of Mr. Trump’s attempt to overturn his 2020 loss by sending fake slates of electors to Congress and encouraging a mob that stormed the Capitol now stands before the court.

Whatever the court decides, Mr. Trump’s brazen refusal to accept the will of the voters or constitutional limits on presidential power still needs to be confronted and rejected. If the court leaves him on the ballot, it will need to be rejected at the voting booth. And if the court throws him off the ballot, it will need to be rejected by the Republican Party in order to avoid a crisis over the legitimacy of the court’s decision.

Mr. Trump claims immunity not only from criminal prosecution, but from the very norms that limit the power of our elected officials and secure our constitutional order. The courts, being only one part of a deliberately divided government in a tragically divided society, cannot fix that problem alone.

[Read next: Trump, the ‘religious right’ and white Christian nationalism]

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