Let’s consider a counterfactual. In the fall of 2016, with the re-election of American liberalism following the election of Donald Trump, a shattered Hillary Clinton embraces the effort to place all the blame on Vladimir Putin.
She criticizes the country, arguing that the elections were fundamentally illegitimate due to foreign interference. She supports any attempt to show that Russian disinformation distorted the result. She supports conspiracy theories that supposedly prove that voting machines in Wisconsin were successfully hacked. She argues that her opponent should not be allowed to take office, that he is a possible candidate from Manchuria, a Russian cat’s paw. And she urges congressional Democrats and Vice President Joe Biden to refuse to certify the election, suggesting that it could somehow be rerun or even that patriotic lawmakers could use their constitutional authority to instead make her, the winner of the popular vote, president .
His crusade evokes a mass movement: young, multiracial and left-wing. On January 6, 2017, a crowd descends on the National Mall to demand that “Trump the traitor” be denied the White House. Clinton incites them with an angry speech, and the protesters attack and overwhelm the Capitol Police and emerge into the Capitol, where one is shot by a police officer and the others wander around for a while and eventually disperse.
The election is still certified, and Trump becomes president two weeks later. But he is ineffective and unpopular, and it appears that Clinton, who continues to deny his legitimacy, will again be the Democratic nominee. At that point, right-wing legal advocacy groups announce an attempt to remove her from primary elections, following the lead of originalist scholars who argue that under the law 14th Amendmentshe betrayed her senatorial oath by fomenting the insurrection and is unfit to hold political office.
No doubt some readers, steadfast in the coherence required by the current attempt to remove Trump from the 2024 presidential election, will grit their teeth and say that in this hypothetical scenario, yes, it is. Others will disdain my attempt at parallelism – insisting, saying, that it makes a difference whether Russia’s interference efforts were real while Trump’s claimed election fraud was not, or arguing that Trump’s conspiracy was broader than the one I just described. .
My view is that you can construct the analogy however you like: if Clinton had explicitly tried to get Congress to overturn the outcome of the 2016 race, and if a left-wing protest on her behalf had turned into a revolt against the certification , almost none of the people currently insisting that we must take Trump’s ballot access challenge very seriously would say the same about a challenge to his eligibility. Instead, they would accuse that challenge of being incipiently authoritarian, a right-wing attack on our sacred democracy.
And they would be right. Eliminate an opposition candidate, or rather, a candidate, from the ballot currently driving in some electoral averages (awaiting the 2024 economic boom that we can all hope is coming), through the exercise of judicial power is a remarkably undemocratic act. It is more undemocratic than impeachment, because the accusers and the convicted, the representatives and senators, are themselves democratically elected and subject to swift democratic punishment. It is more undemocratic than putting an opposition politician on trial, because voters who find that trial illegitimate can still vote for an indicted or convicted politician, because almost a million Americans did for Eugene V. Debs while he languished in prison in 1920.
Sometimes the rules of a republic require you to do undemocratic things. But if the rule you purport to invoke treats January 6 as an event of the same type as the secession of the Confederacy, consider the possibility that you have taken the tropes of anti-Trump opinion too literally.
The term “insurrection”, Jonathan Chait of New York magazine he wrote on Wednesday, is “a defensible shortcut to January 6.” But it is not “the most accurate term,” because while “Trump was trying to secure an unelected second term,” “he was not trying to seize and hold the Capitol or declare a breakaway republic.”
This concession drew howls of online derision from his left-wing critics, but Chait is obviously overwhelmingly right. There are precedent and implementation arguments that disprove Trump’s ineligibility thesis, and prudential arguments about whether populist fervor should be suppressed by judicial fiat. But the more important point is that there are many things a politician can do to subvert a democratic outcome, all of them impeccable and some potentially illegal, which are simply not equivalent to a military rebellion, even if a group of protesters and rioters get involved.
To insist otherwise, in the supposed service of the Constitution, is to demonstrate once again that too many would-be saviors of our Republic would take a great leap forward through reason and common sense if only they could be certain of finally getting rid of Donald Trump. .