The conventional wisdom appears to be the US Supreme Court was right in ruling that neither Colorado nor any other state can remove Donald Trump from the ballot on 14th Amendment grounds. There appears to be a consensus of elite opinion in “letting voters decide.”
As worthies such as Madiba Dennie and Thomas Zimmer have said, however, voters did decide. In 2020, they voted Trump out. He didn’t like that, so he organized an attempted paramilitary takeover of the US government in order to overthrow the democratic will of the American people. The Colorado Supreme Court decision to disqualify him as an insurrectionist was a lonely attempt to hold him legally accountable.
Colorado’s high court was doing what’s expected by a democratic system founded on the principle of checks and balances. When the system’s integrity is under threat, as it was on January, 6, 2021, the rule of law demands democratic institutions administer commensurate justice. The Colorado Supreme Court tried that, as did elected officials in Maine and Illinois, but the US Supreme Court said no. Worse, elite opinion appears to believe that accountability is better left to voters.
I get it. It’s probably not a good idea to allow states to kick presidential candidates off their ballots, whether for good reasons, as was the case in Colorado, or for phony reasons, as would be the case in virtually any state controlled by the Republicans. But that’s not my point here.
My point is about this apparent conventional wisdom. We have not thought through the literal danger of “letting voters decide,” because we haven’t fully reckoned with the reason we’re talking about it, which is the failure of democratic institutions, like courts of law, to hold powerful elites accountable and protect democracy. They can’t or they won’t. So those who are saying voters should decide Trump’s fate are really conceding that democratic institutions have become so corrupt, and accountability has become so impossible, that there’s only one thing to do. Take justice into our own hands. Become vigilantes.
I don’t know about you, but that seems bad. As Australia’s former Prime Minister Malcolm Trumbull reminded us recently, democracy and the rule of law are supposed to work (ideally) in concert so that a majority is empowered but also constrained from acting on its worst impulses against a minority. “Vigilante voting” not only hints at upending those checks and balances. It puts democracy in direct conflict with the rule of law, so it might have very little meaning if Donald Trump wins.
If we’re going to say voters should decide Trump’s fate, we must also say the election’s outcome will be his verdict. If he loses, he’s guilty of all crimes committed against democracy. (Perhaps the justice system would then proceed.) But if he wins, he’s innocent. He will have been granted absolution for everything he’s ever done. Everything. There might never again be such a thing as a crime if the president does it. He could have his opponents murdered, safe in the knowledge that a majority approves. Democracy will have obliterated the rule of law.
“Imagine that Trump is president again and instructs the Justice Department to bring treason charges against Jack Smith,” wroteThe Bulwark’s Mona Charen. “Who will stop him? The carefully vetted MAGA lawyers he has hired precisely for their loyalty?” She went on:
Suppose he orders the Department of Homeland Security to round up and deport 11 million immigrants without due care to ensure that American citizens aren’t swept up? What will Congress do? Impeach him?
What if he instructs the IRS to audit and fine Liz Cheney, Adam Schiff, George Conway, and hundreds of other prominent critics? This violates IRS rules. But will IRS employees, again hired for loyalty to Trump, demur? After all, he did run on the promise, 'I am your retribution,' and his voters agreed.
What if he directs the SEC to investigate banks that refuse to loan the Trump Organization money? Would any whistleblower risk his job or worse?
What if, in response to street demonstrations, Trump invokes the Insurrection Act and federalizes the national guard, allowing the military to shut down protests and arrest (or worse) demonstrators without cause?
I don’t mean to suggest that we shouldn’t be in this mess or that America deserves better. (I’m not sure it does.) I do mean to suggest, however, that the conventional wisdom is more problematic than it seems. It attempts to normalize, even minimize, the danger we face by suggesting that everything will be fine as long as voters get to decide.
Don’t bet on it.