Masquerading as legality
Mae West (1893-1980), a salty actress, once played a character who said that when facing a choice between two evils, she opted for the one she hadn’t tried before.
A 2024 presidential choice between today’s incumbent and his immediate predecessor would preclude West’s cheerful strategy: Both have been tried, and together have produced a whopping bipartisan majority eager to see the last of them. This partly explains the spreading flirtation with the idea that the 14th Amendment bars Donald Trump from seeking the presidency.
Many advocates of this idea are academics eager to infect presidential politics with the cancel culture of their campuses: Do not refute your adversaries; ban them. Less nakedly partisan people might think that using the 14th Amendment to remove Trump would thereby prompt President Biden to totter off into the sunset. But recourse to the amendment would be lawlessness masquerading as legality.
And there already is a surfeit of illegality.
But people who would wield the amendment to extinguish Trump’s electoral career are trying to solve a political problem by cleverness, citing the amendment’s Section 3. It says that no person may “hold any office, civil or military, under the United States” who, having taken an oath as “an officer of the United States” to “support the Constitution,” has subsequently “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The Confederacy—the attempted secessions of 11 states; rebel cannon firing on federal installations; armies on the march against U.S. forces—was unambiguously an insurrection. A riotous rabble—whatever its motivations and delusional aspirations—on a January afternoon? Rather less so. They were criminal and disgusting, but closer to vandals than to the Army of Northern Virginia.
Arguments about the continuing force and sweep of Section 3 are interesting; unleavened by prudence, they are dangerous. There could be no surer way to further embitter and calcify Trump’s supporters than to stretch constitutional language to eliminate an electoral choice. And, in the process, to preempt judicial determinations about the nature and legal status of Trump’s Jan. 6 behavior.
People can find other outlets for their justifiable concerns about legalities. For example:
Peter Navarro, former Trump adviser, has been properly convicted of contempt of Congress for defying a congressional subpoena. If unpunished, such behavior could largely nullify Congress’s powers of investigation and oversight. Progressives pleased by this were, however, not noticeably offended when (The Wall Street Journal remembers) Barack Obama’s Justice Department refused to prosecute Lois Lerner, who used her IRS position to impede conservative advocacy organizations, and for her noncooperation was held in contempt by the Republican-controlled House.
Today, progressives’ silence conveys complacency about Julie Su’s imminent illegality. She is wielding power as Biden’s labor secretary, even though the Democratic-controlled Senate has not confirmed her (at least 51 senators seem opposed). The Vacancies Act limits to 210 days the time someone can serve unconfirmed in an advice-and-consent position in a federal department.
Su’s legality expires Oct. 7. Her supporters say a Labor Department succession statute stipulates no time limit on her ability to serve as acting secretary, so she can continue. But this would be an unconstitutional abridgment of the Senate’s power to advise and consent.
People advocating a 14th Amendment solution to the problem of Trump are spreading the acids of cynicism and suspicion that are corroding trust in institutions. And some states’ election officials—watch Colorado—are apt to seize this occasion for grandstanding, trying to keep Trump’s name off their ballots. This will thicken his armor of martyrdom.
Besides, this nation was founded on a good idea: the pursuit of happiness. In 2024, for many Americans, happiness will come from casting a vote against Trump.