Trump’s apologists say it doesn’t matter if he’s guilty of insurrection. That’s not true
Donald Trump may be the only person about whom prominent conservatives think innocence is irrelevant. Voters in many states filed lawsuits arguing that Trump was constitutionally disqualified from the presidency, under section 3 of the 14th amendment, having committed treason against the United States when resisting by force the peaceful transfer of presidential power. The Colorado supreme court agreed. Trump and his lawyers responded by waving numerous constitutional technicalities that they claimed exempted traitors from constitutional disqualification, while barely making any effort to refute charges that the former president committed treason on 6 January 2021.
On Monday, all nine justices on the US supreme court agreed that Donald Trump should remain on the presidential ballot even if he is, in the words of Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, “an oathbreaking insurrectionist”. No one challenged that finding.
Proponents of law and order – who, for decades, railed against judicial decisions that freed from criminal sanction suspected and convicted criminals based on due process rights that are unconnected to guilt or innocence – now celebrate the possibility that a contemporary Benedict Arnold may hold the highest office of the land. They rejoice that the supreme court kept the former president on the ballot in all 50 states by relying on alleged constitutional rules that do not require Trump to defend himself against treason allegations.
The charge is treason, that Trump is a traitor. Section 3 of the 14th amendment disqualifies past and present officeholders who engage in insurrection or rebellion against the United States. Case law and legal treatises from the American Revolution until the end of Reconstruction uniformly held that persons who engaged in insurrection levied war against the US. Levying war or engaging in an insurrection, these legal authorities agreed, did not require traditional warfare, but merely an assemblage resisting any federal law by force for a public purpose.
Treason is defined in part by article 3 of the constitution as levying war against the United States. The Republicans who framed section 3 of the 14th amendment in 1866 self-consciously invoked the treason clause when considering constitutional disqualification. Representative Samuel McKee of Kentucky stated that constitutional disqualification “cuts off the traitor from all political power in the nation”. Senator Richard Yates of Illinois, who had been a close political associate of Lincoln, declared: “I am for the exclusion of traitors and rebels from exercising control and power and authority in this government.”
Proponents of Trump’s disqualification presented powerful evidence to the trial court in Colorado and to the Maine secretary of state that Trump is a traitor who levied war against the US. They presented evidence that Trump knew that his tweets were instigating violence against state elected officials; that Trump was aware that the armed persons in the assemblage on January 6 were seeking his approval to resist by violence the peaceful transfer of presidential power; and that his speech and his actions after the speech were intended to incite and support the violent resistance to federal authority that occurred.
Courts in Colorado and the Maine secretary of state found those evidentiary presentations compelling. Their decisions disqualifying Trump declared that the plaintiffs had met their burden when proving Trump was a traitor to the US.
Had Trump been a poor, young man of color, conservatives would have insisted that Trump rebut the evidence and findings that he is a traitor. For more than a half-century, proponents of law and order have quoted the title of Judge Henry Friendly’s 1970 University of Chicago Law Reviewarticle Is Innocence Irrelevant? when persons suspected of ordinary crimes invoke constitutional rights in state or federal courts.
Chanting “Is Innocence Irrelevant?” conservative judges sharply narrowed constitutional rights against police searches and self-incrimination. They drastically reduced the occasions on which persons suspected or convicted of ordinary crimes may assert what remain constitutional rights. Conservative justices have so gutted federal habeas corpus review that the underlying principle seems “better some innocent persons rot in prison than one guilty prison be freed on a constitutional technicality.” American prisons are now overpopulated by people who have had their constitutional rights violated during the process of investigating or prosecuting their crimes.
Prominent conservatives make no such demands for proof of innocence when Trump is at the bar of disqualification. In the disqualification hearings, Trump’s lawyers made only perfunctory efforts to deny his culpability in the insurrection of 6 January 2021. His lawyers barely mentioned matters of guilt or innocence when filing briefs before the supreme court or in oral argument. Conservative commentators who insist that Trump remains qualified to hold the presidency do not spend their energies documenting why Trump is not a traitor. Six supreme court justices in Trump v Andersonrefused to comment on whether Trump committed treason. That defense case, they implicitly recognized, cannot be made.
Trump, his lawyers and his supporters respond to charges that Trump is a traitor with numerous assertions that have nothing to do with whether Trump incited and participated in the January 6 insurrection. They claim that section 3 exempts treasonous former presidents or permits traitors to be elected president of the US. They insist that traitors can be disqualified under the 14th amendment only if Congress authorizes the disqualification. They claim that section 3 disqualifies only persons who committed treason during the civil war and does not disqualify persons who lead violent secession movements now.
The supreme court in turn invented a rule that congressional legislation under section 5 of the 14th amendment is necessary for federal officials to be disqualified, a rule unknown to the text of section 3 or the persons who framed section 3. Mississippi in 1868, under this rule, could not disqualify Robert E Lee or Jefferson Davis from the presidential ballot.
So-called originalists are not deterred by proof that many if not all these technicalities are far-fetched and belied by the historical evidence. There is nothing in the text or history of the 14th amendment, for example, that suggests different procedures for disqualifying federal officers than those used for disqualifying state officers. The prison abolitionist movement would achieve its goals if courts showed the same creativity finding technical excuses to avoid conviction in ordinary criminal trials as Trump and the supreme court have shown when avoiding disqualification.
Trump’s advocates argue that the former president’s innocence is irrelevant when responding to the numerous criminal indictments against him by federal and state prosecutors. Again, Trump barely contests the multiple felony indictments that charge him with engaging in racketeering, soliciting or impersonating a public officer, making false statements or documents engaging in conspiracies to defraud the federal government and against civil rights, obstructing justice, willfully retaining national defense information, illegally withholding or altering documents, and falsified business records.
To all those crimes Trump claims that he cannot be legally culpable for any criminal action he took when president of the United States. Rebutting criminal charges is for ordinary Americans, not for the Maga leader.
Technicalities matter. Innocence is sometimes irrelevant. We often protect the innocent by not punishing the guilty. Refusing to permit reliable information obtained by an unconstitutional search into evidence at trial may deter police officers from unconstitutionally searching people not guilty of any crime. Government should not profit from wrongdoing. Justice Louis Brandeis in Olmstead v United States(1928) wrote, “If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
Commitment to the rule of law may provide a third reason why innocence is sometimes irrelevant. No one may be convicted of treason on the testimony of one eyewitness, no matter how weighty the incriminating evidence, because article 3 requires two witnesses to support a treason conviction. The supreme court’s conclusion that Colorado could not disqualify Trump without congressional permission, however implausible as a matter of law, does compel the justices to permit the former president to remain on the ballot no matter how strong the evidence that Trump is a traitor.
Yet innocence is also sometimes relevant. The rule of law does not provide sufficient reasons for straining the constitution to find technicalities that enable traitors to run for president of the United States. The principle that clear legal mandates must be followed does not justify performing legal gymnastics to reach such an absurd result as exempting a former president from a constitutional ban on insurrectionists holding office.
Innocence is always relevant when a person seeks honors or power. Constitutional commitments to the rule of law do not require giving the same respect to suspected criminals who get off on technicalities as to persons found not guilty, even as both may not suffer direct or collateral criminal sanctions. Persons seeking honors must rebut charges of culpable behavior. They cannot excuse their conduct by pointing to legal technicalities.
A work of literature is not eligible for the Nobel literature prize if the author without attribution lifted passages from another book, even if the statute of limitations no longer allows a lawsuit for plagiarism. People are properly disqualified from being on drug prevention taskforces after avoiding being convicted for drug dealing because the search that uncovered the incriminating fentanyl was unconstitutional.
Trump’s innocence is relevant to his political qualifications for the presidency even as the supreme court decides his innocence is not relevant to his constitutional qualifications for the presidency. No political party should in good conscience nominate, and no voter should in good faith support, a candidate who seeks on constitutional technicalities to avoid a charge of treason.
Trump’s guilt, which he and his attorneys have largely conceded, is not irrelevant to his being entrusted with the presidency. By insisting that his innocence is irrelevant to his legal qualifications to hold office, Trump is disqualifying himself from holding office politically. His failure to contest the evidence of his treason acknowledges that, the supreme court decision not to the contrary, he is a traitor who must not hold any office of trust or profit under the United States.
Mark A Graber is a professor of law