TWO WRONGS DON’T MAKE A RIGHT
Manhattan District Attorney Alvin Bragg’s dubious prosecution of Donald Trump over his payoffs to a mistress boosted the former president in the Republican primary polls. One of the predictable effects of the decision by the Colorado Supreme Court to kick Trump off the ballot is that it will have the same effect.
Predictable is not, however, the same thing as rational. The court’s decision can be wrong and even outrageous without being a defensible reason for making Trump president again.
Trump supporters sometimes say they feel compelled to support him as a way to stand up to the illegitimate tactics of his opponents: to preserve their freedom to use the political process to choose him as president even as those opponents try to deprive them of that option.
This is deeply unwise. It’s selfdefeating, because Republicans who react that way are letting the behavior of Trump’s opponents dictate their votes. And although the opponents have taken extraordinary measures, it’s not simply because they dislike his fans or because Trump is a threat to a nebulously defined establishment. Voters should consider Trump’s conduct at issue in the Colorado suit disqualifying even if it is not the court’s place to say so.
And it isn’t. The Colorado court followed what jurist Robert Bork called the “heart’s desire” school of jurisprudence. The teaching of that school: If you squint at the Constitution from just the right angle, it makes your fondest wish come true. It works for anyone, regardless of their party affiliation or ideology.
If you’re John Eastman, a vice president has the power to keep the president in office with no need to show that he won enough votes in the right places. If you’re the Colorado Supreme Court, you have the power to run your very own presidential election. That way, you can give millions of voters what they have badly wanted for years — a political world without Trump — without having to convince any of the scores of millions of voters who have kept it revolving around him.
Such legal arguments treat the Constitution as a set of weapons for use by clever lawyers and eager judges rather than a charter for selfgovernment. It would be irrational for anyone to amend the Constitution to give the vice president the power to overturn an election his ticket lost.
Much of the criticism of the court from Republicans has questioned whether Trump really “engaged in insurrection or rebellion” under the terms of the 14th Amendment. They dispute the applicability of the word “insurrection”: That QAnon shaman isn’t exactly analogous to Robert E. Lee. “Engaged” is also a stretch: The early history of applying that term suggests that it takes more than just telling lies to whip up a crowd, and the Colorado court didn’t address the point. But it’s much more reasonable to suggest that Trump is guilty than that responsibility for that judgment is scattered throughout the land.
For many millions of Trump opponents, and possibly for the Colorado justices in the majority, kicking him off the ballot is emotionally satisfying. Also, for many Republicans, is backing Trump in protest of the decision. The consequences of indulging these sentiments may be less welcome for everyone involved.