An anticoup provision is not much use with a loophole for self-coups.
In the history of self-defeating euphemisms, Jonathan Chait’s characterization of Donald Trump’s failed coup as an attempt to “secure an unelected second term in office” belongs in the hall of fame, alongside George W. Bush’s “weapons of mass destruction–related program activities” or Kellyanne Conway’s “alternative facts.”
“Alternative facts” clearly meant lies. “Weapons of mass destruction–related program activities” merely reinforced the absence of the very weapons of mass destruction that the U.S. had invoked to justify invading Iraq. And another way of saying “secure an unelected second term in office” is “coup.”
When writing that line, Chait, like many other liberal writers, was alarmed by the Colorado Supreme Court’s decision disqualifying Trump from the ballot based on Section 3 of the Fourteenth Amendment, which bars from political office those who have sworn an oath to the Constitution and subsequently engaged in “insurrection or rebellion.” Although Chait curiously insisted that he wouldn’t “comment on the legal merits of the case,” he managed to somehow zero in on one of the main legal points at issue, which is whether Trump’s behavior “constitutes ‘insurrection.”
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Among the definitions explored by the Colorado Supreme Court is one from an 1860 dictionary that describes insurrection as “a rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state.” A law-review article by the conservative law professors William Baude and Michael Paulsen, which the Colorado Supreme Court cited heavily, noted that insurrection involves “an affirmative contest with, and active resistance to, the authority of the government. It is in that sense more than just organized resistance to the laws—more than just a protest, even one involving civil disobedience.”
There are many compelling political reasons not to disqualify Trump under the Fourteenth Amendment, among them the potential implications of removing the immense decision of who gets to be president from the electorate’s control. But to oppose his removal on legal, not political, grounds is to, in a circuitous way, make the same argument as Trump himself: that he is above the law—that the constraints of the Constitution apply to others but, for some reason, not to him.
Beyond that, in service to their argument against disqualification, some of those opposed to Trump are now echoing his sycophants in arguing that January 6 was not as serious as remembered, and therefore does not fit the definition of “insurrection or rebellion” as set out in the Constitution, so the law should be ignored. I understand and sympathize with the instinct that this contest should be left to the electorate. But like George Conway, the more I read from the critics of the Colorado decision, the more persuasive the decision becomes.
Chait himself settles on a very curious definition of insurrection. In Chait’s view, “the weak point in this argument is the finding that Trump’s behavior constitutes ‘insurrection.’ This is a defensible shorthand for January 6, one I’ve used frequently myself. But it’s not the most precise term,” because “Trump was not trying to seize and hold the Capitol nor declare a breakaway republic.”
Only die-hard Trumpists did not see January 6 as an insurrection in the immediate aftermath. That February, then–Senate Majority Leader Mitch McConnell said unequivocally that “we all were here. We saw what happened. It was a violent insurrection for the purpose of trying to prevent the peaceful transfer of power after a legitimately certified election, from one administration to the next.”
The retreat from this sort of language among more sincere Trump critics is a recent political necessity demanded by Fourteenth Amendment disqualification becoming a live issue. It is Chait’s logic that is weak, defining insurrection in such a way that it precludes someone trying to seize power from a position of authority absent an explicit declaration of secession. It makes little sense for a provision intended to prevent people who attempted to seize power by force or threat of force from being elected to exclude those who engaged in insurrection while in office, but that is essentially what Chait is arguing. An anticoup provision is not much use with a loophole for self-coups.
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Another major problem with Chait’s argument is that it excludes most events historically referred to as insurrections. The Whiskey Rebellion of 1791 (sometimes called the Whiskey Insurrection), a revolt against an excise tax on spirits that had impoverished grain farmers in western Pennsylvania, never introduced ordinances of secession or sought to “seize and hold the Capitol.” Neither did the subsequent tax revolt known as Fries’s Rebellion. Neither Nat Turner’s uprising nor Gabriel’s Rebellion, uprisings against slavery, would fit Chait’s narrow definition. The same is true of John Brown’s attempt to seize the arsenal at Harpers Ferry to arm the enslaved to rise up against their enslavers. And yet all were contemporaneously referred to as “rebellions” and “insurrections.” Chait’s definition of insurrection is single-serve, meant solely to exclude Trump’s actions.
That is likely why it appealed to the New York Times columnist Ross Douthat, who gushed that Chait’s definition of insurrection (which excludes most insurrections) was “obviously, crashingly correct.” Crashing is perhaps an apt metaphor here, but more like the kind that raises your insurance rates.
Deploying a strained analogy in which Hillary Clinton “tried to induce Congress to overturn the result of the 2016 race and had a left-wing protest on her behalf turned into a certification-disrupting riot,” Douthat concludes that “almost none of the people currently insisting that we need to take the challenge to Trump’s ballot access very seriously would be saying the same about a challenge to her eligibility.”
Douthat may have a hazy memory about the events leading up to and occurring on January 6, because he had announced prior to the assault on the Capitol that “our weak, ranting, infected-by-Covid chief executive is not plotting a coup, because a term like ‘plotting’ implies capabilities that he conspicuously lacks.” Like Chait, Douthat subscribed to the broadly shared definition of what a coup is—unlawfully seizing power by fraud, force, or threat of force—right up until the moment when courts began to consider whether Trump’s actions might disqualify him under the Constitution. So it’s worth reviewing what Trump actually did.
The mob that attacked the Capitol on January 6 was the culmination of a series of efforts to overturn the election results, which included not merely legal appeals or extreme rhetoric—both of which are constitutionally permitted—but the use of the authority of the presidency to pressure state legislators to unlawfully overturn the elections in their state, to coerce the Department of Justice to provide a false pretext for overturning said results, and to intimidate then–Vice President Mike Pence into using authority he did not have to do the same, a request he nearly tried to fulfill. The failure of all of these schemes rested not on a lack of intent, but on not having consolidated federal power in a way Trump and his advisers are openly planning to do in a second term should he prevail in November.
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Although turning the mob on the Capitol may have appeared impulsive, we now know from Trump’s unpublished tweet drafts and emails from the campaign itself that using the mob to coerce Congress into overturning the results was a premeditated act. He publicly encouraged the mob on Twitter as the Capitol was being breached, while refusing to use his authority to assist the overwhelmed Capitol police, because he hoped the mob would achieve its objective of keeping him in power. Had he succeeded in “securing an unelected second term,” it would have been the end of constitutional government in the United States. In comparison, many prior insurrections had far more limited aims and consequences.
Douthat may have forgotten these other elements of January 6 when he constructed his Clinton analogy, or he may have been unable to be more thorough given the spatial constraints of a physical newspaper. But those insisting that Trump’s conduct does not fit the definition of insurrection should describe what actually happened, and what Trump actually did. If they are going to argue that Trump’s actions do not amount to insurrection, and are therefore not disqualifying, they should use a definition that does not exclude most insurrections in American history. There is no need for hypotheticals with the partisan valences reversed: The one recent example we have of the Supreme Court intervening in a presidential election ended with the Democrat conceding and telling his supporters to accept the result.
The argument that defeating Trump at the ballot box is politically preferable to disqualifying him is one I agree with. But there is something naive to assuming that Trump would accept such a verdict from the electorate a second time when he didn’t accept it the first time. Neither a close election nor a sound defeat matters when Trump can induce his supporters to believe any fiction he conjures. If the Constitution’s provisions apply only when they are popular, then the Constitution is meaningless. And if the argument is that the law should not apply to Trump because of his substantial political support, then that would render him immune to any legal proceeding, criminal or civil, which is just as he would have it.
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