Colorado court just proved Trump’s point

If you’re going to throw a presidential candidate off the ballot for engaging in an insurrection through his personal actions, shouldn’t he first be convicted of engaging in an insurrection?

Fomenting an insurrection is against the law. It’s right there in the federal criminal code, 18 U.S. Code § 2383 – Rebellion or insurrection: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

For the sake of argument, forget a conviction on this charge for a moment. If you’re going to throw a presidential candidate off the ballot for insurrection, shouldn’t he at least be charged with engaging in an insurrection?

You may love Donald Trump, or you may hate him. But he’s entitled to his day in court just like every other American. He’s entitled to a legal defense, to cross-examine witnesses and present counterevidence. And as you probably noticed, Trump is going to have a lot of days in court. Prosecutors have not been shy about bringing criminal charges against Trump throughout the past year. He is facing 91 felony counts in four criminal cases in D.C., New York, Florida and Georgia. He faces charges of conspiracy to defraud the U.S. government and conspiracy to obstruct an official proceeding, and also charges of falsifying business records, violating Georgia’s anti-racketeering law, illegally possessing classified documents, obstruction and willful retention of national defense information.

Just about all of the charges are serious, with the possible exception of the ones related to the payments to Stormy Daniels.

But do you know what charge Trump does not face?

Engaging in an insurrection.

I have a hard time believing it is because Jack Smith or any other prosecutor forgot, or overlooked, the possibility of this charge. Smith seems like a smart guy, so the most reasonable conclusion is that Smith either doesn’t believe that the evidence exists to convict Trump on that charge, or that he and his team are unlikely to persuade a jury to convict Trump on that charge.

You don’t get to kick a guy off the ballot because you think has committed a crime but can’t prove it. If that’s going to be the new standard going forward, we should expect state Supreme Courts in red states to kick President Biden off the ballot because the payments from foreign businessmen to members of Biden’s family stink worse than the swamp water that apparently all of our national monuments are built upon.

The U.S. Supreme Court will probably strike down this decision by Colorado’s highest court to remove Trump from the state primary ballot. But even that common-sense conclusion is going to be met with a lot of arguments that this is a right-wing court protecting Trump. We’re already seeing arguments that Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett ought to recuse themselves because Trump appointed them. (If that’s the standard, shouldn’t Justice Ketanji Brown Jackson recuse herself from this case because it involves the front-running challenger to the president who appointed her to the court?) Some Democrats also want Clarence Thomas to recuse himself because of the outspoken political views of his wife, Virginia “Ginni” Thomas, and her ties with Republicans close to Trump.

At issue in this case is not “What do you think of Trump?”; it’s whether the Colorado Supreme Court has grounds to keep Trump off the ballot that are consistent with the Constitution and legal precedent.

Trump often complains that he is judged by a different standard than everyone else, that all kinds of sinister people inside and outside of the deep state are out to get him, and that all kinds of allegedly impartial authorities are engaged in “ELECTION INTERFERENCE.”

This was indisputably an effort to keep Trump off Colorado’s ballot by longtime foes of the president, including the group Citizens for Responsibility and Ethics in Washington. These justices have gone way out on a limb, reaching the opposite conclusion of judges in Michigan and Minnesota, not exactly right-wing wonderlands.

Four justices on the Colorado Supreme Court have helped prove Trump’s point, at least in this particular circumstance. Thanks a lot, guys!

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Jim Geraghty is National Review’s senior political correspondent, where he writes the daily “Morning Jolt” newsletter, among other writing duties.