by ZAID JILANI and ALEX GUTENTAG
The Colorado Supreme Court has ruled that former president Donald J. Trump cannot be on the 2024 primary ballot in the state. The Court found that Trump engaged in an insurrection and is therefore disqualified from running for president. The Colorado Supreme Court’s decision was based on Section 3 of the 14th Amendment, which was originally intended to keep Confederate officials from holding office.
Yet Trump has never been criminally convicted of participating in an insurrection. Even special counsel Jack Smith, who is leading the Department of Justice (DOJ) investigation into Trump, chose not to indict Trump under the federal statute that criminalizes inciting an insurrection or rebellion, even though this charge was part of the referral from the January 6 committee. Smith could not build the legal case to include the charge, likely because of the First Amendment issues that would come with it.
The Colorado Supreme Court skirted both due process and First Amendment concerns and chose to equate Trump’s political speech with sedition in the American Civil War that killed over 600,000 people.
It’s true that Trump has at times adopted extreme and inflammatory rhetoric, including most recently saying that illegal immigrants are “poisoning the blood” of the country.
But one need not agree with anything Trump says to recognize that in a democratic society, voters still have a right to see him on the ballot. Over one million people voted for Trump in Colorado in 2020. What will those people think when they see that judges are essentially trying to take away their right to vote for the candidate of their choice? Will they really see themselves as included in our democracy, or will they continue to lose faith in the American political system? The answer is obvious.
Democrats’ argument that Trump poses a unique threat to democracy has little basis in reality. Trump’s election denial and machinations were not qualitatively different from the actions of many Democrats. As for the January 6 riot, it was largely the result of security failures, including leaders’ alleged refusal to call in the National Guard.
The court decision comes on the heels of years of panicked warning from Democrats and their allies that it’s Trump who seeks to end American democracy and establish a dictatorship.
In a lengthy essay for The Washington Post that quickly went viral last month, Robert Kagan argued that the United States is a “few short steps, and a matter of months, away from the possibility of dictatorship” led by none other than Donald Trump.
The problem with this prediction is that we already know how Trump responds to all of these things: he was president between 2017 and 2021. When, for instance, the judiciary ruled against Trump – as it did many times during his presidency – he was more likely to send a Tweet than troops.
For instance, when a federal judge temporarily paused Trump’s travel ban targeting visitors from a range of countries in February 2017, Trump took to Twitter to lament, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned.”
At the time, Trump took heat for singling out a judge for condemnation. “The President’s attack on Judge James Robart, a Bush appointee who passed with 99 votes, shows a disdain for an independent judiciary that doesn’t always bend to his wishes and a continued lack of respect for the Constitution,” intoned Senate Majority Leader Chuck Schumer.
But while Trump’s frequent verbal attacks on the judiciary may have been seen as impolitic by his critics, they ultimately didn’t amount to much — certainly not anything like an actual attack. Trump, throughout his presidency, ultimately preserved the separation of powers, and you could even argue that having an adversarial relationship between different branches of government and different parts of political society protects democracy rather than subverts it.
For instance, Kagan warns that “in a regime where the ruler has declared the news media to be ‘enemies of the state,’ the press will find itself under significant and constant pressure. Media owners will discover that a hostile and unbridled president can make their lives unpleasant in all sorts of ways.”
But if the media’s lives were unpleasant thanks to Trump, it’s hard to detect that in their pocketbooks. Newspaper subscriptions soared under the first Trump presidency, and reporters who went out of their way to antagonize the president became instant celebrities with generous book deals.
Even when Trump did take a rare tangible step against press freedom, it didn’t amount to much. When the Trump White House temporarily suspended the press pass of a reporter who engaged in a lengthy verbal dispute with an administration staffer, the courts ruled that the reporter’s due process rights were violated. Whatever names Trump called the press, there is little evidence that he used his powers as president to suppress their critical coverage of his White House.
Meanwhile, his predecessor, Barack Obama, vigorously pursued whistleblowers with the full force of the federal government. As CNN’s Jake Tapper pointed out, the Obama administration “used the Espionage Act to go after whistleblowers who leaked to journalists . . . more than all previous administrations combined.”
One report from the Shorenstein Center at Harvard estimated that 80% of the media coverage during Trump’s first 100 days had a negative tone. That’s hardly a sign that the media was cowed by the presence of Trump in the White House, Tweets and all.
This adversarial relationship between the press and the president is good for democracy, not bad. When the media serve as handmaidens for those in power, we get less scrutiny of policies that we later come to regret – such as excessive COVID-19 policies like school shutdowns and the Iraq war.
One sign that the Republican Party would be moving in an autocratic direction would be if they stopped respecting electoral results and clung to power despite losing elections.
It is true that Trump refused to concede his own defeat, and his rhetoric helped contribute to political chaos around the election and the January 6th riot. Much of the Republican Party, too, has been reticent to admit that Trump lost that election.
But being sore losers about an election isn’t equivalent to being tyrants. Following the 2000 election, many Democrats, too, felt that Bush was unfairly made the president. Gallup polling from
after that election found that “just 15% said he won fair and square.”
And, as noted above, some Democrats have similarly refused to admit defeat. While both Republicans and Democrats have a handful of gubernatorial candidates who refused to concede – Stacey Abrams in 2018 for the Democrats and Kari Lake for the Republicans in 2022 – for the most part, the parties have been proceeding as normal after defeat.