There are eight pallbearers in a funeral, right? In this case Donald Trump’s coffin will be carried by nine, which will surprise him because he thought he stacked that deck in his favor already. But it’s not going to happen that way. Alito, Thomas, and Trump’s three appointees are not going to save him when he needs it — unless they pull some truly amazing judicial fancy footwork. And while I don’t rule that out, I think they will take the safer, less inflammatory route and that will lead to Trump’s doom. Let us begin.
As you are painfully aware, we are in for an interesting journey across choppy judicial waters. We’re going to find out whether the Constitution is the sturdy, unsinkable craft that we’ve always been told that it is, designed to carry us safely through the worst political storm, or can it be sabotaged by judges with a partisan agenda? Which is what Trump is betting the farm on, because that’s his only prayer.
Since J. Michael Luttig and Laurence Tribe published a seminal article in The Atlantic on the 14th Amendment the question has narrowed on the topic of Trump being able to run for president in 2024. What it comes down to, is state courts are already challenging whether Trump can be on the ballot or whether he is precluded from running by Section 3 of the 14th Amendment to the Constitution which says that:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. [emphasis mine] […]
The bottom line is that Donald Trump both “engaged in” “insurrection or rebellion” and gave “aid or comfort” to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment. If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution.
That last passage was written by two legal scholars, William Bodes and Michael Stokes Paulsen, both members of the Federalist Society, and that really is as simple as it gets. Laurence Tribe spoke about this yesterday and his opinion is that this matter will get before the Supreme Court and he believes that will take place before the GOP convention in July, 2024.
Now there are a few possibilities here. This is where it gets interesting.
- The Supreme Court could decide that, on its face, the language of Section 3 is clear and Trump therefore cannot run for office again;
- Or, they may decide that this is a matter for the legislative branch and bounce it there. You saw the plain language, “But Congress may, by a vote of two-thirds of each House, remove such disability.”
There is no way that a substantial group of Democrats in the House will join with the razor-thin GOP majority and vote that Trump remains on the ballot, and there is certainly no way that Trump could win in the Senate. I believe it’s safe to say that even Mitch McConnell would laugh uproariously at the very idea. It simply is not happening. Not in the first six months of 2024, it’s not.
So where does that leave Trump? SOL, yes, but what are his options? Can he argue that he will step down in 2024, but the MAGAs have to have yuuge Republican wins down ballot, so that he can run in 2028 where there will be a supermajority in both chambers of Congress to allow him to overcome this Constitutional impediment? That’s an interesting fantasy.
I believe that is really is this simple and that Donald Trump will go out of our lives, not with a bang, but with a whimper. He simply won’t get on the 2024 ballot. And what can of worms that opens next, is anybody’s guess.
One good aspect of this is that I believe that No Labels would be derailed. Or, maybe they’ll try to split the vote anyway, and hope that Ron DeSantis can pull enough votes on his own, that with the ones that No Labels bleeds from Biden, they will enable him to win.
Point being, Trump off the ballot will put an entirely different spin on the 2024 election and late in the game, no less. This is going to be one wild election year, on that you may depend.