The decision by the Colorado supreme court to ban Donald Trump from the Republican primary has received pushback from some predictable and some not-so-predictable quarters.
The former president’s supporters of course consider him the great Maga martyr, temporarily hindered by nefarious elites from his rightful return and revenge; in this morality play, the US supreme court, besieged with accusations of being undemocratic, can now play the savior by putting him back on the ballot and making the people Trump’s ultimate judge.
Some liberals also fuss about the political fallout of the decision, worried that barring Trump from running will provoke chaos and violence. And the left, suspecting a “liberal plot against democracy”, is not happy either: they reproach the liberals who welcome Trump’s disqualification for wanting to short-circuit the political process – thereby revealing deep distrust of democracy or at least defeatism about confronting Trump in an open contest. All these concerns are mistaken.
The Colorado supreme court comprehensively refuted Trump’s claims, especially the ones bordering on the absurd. The justices patiently argued that parties cannot make autonomous, let alone idiosyncratic, decisions about who to put on the ballot – by that logic, they could nominate a 10-year-old for the presidency. They also painstakingly took apart the idea that the now famous section three of the 14th amendment covers every imaginable official expectation of the president. In terms clearly tailored to appeal to justices on the US supreme court, they explain that plain language and the intent of the drafters of the amendment suggest that insurrectionists – including ones at the very top – were not supposed to hold office again, unless Congress voted an amnesty with a two-thirds majority.
The court’s majority also made the case that the House of Representatives’ January 6 report is not some partisan attack on poor Trump and hence could be admitted as evidence; they then drew on that evidence to show that Trump had clearly engaged in insurrection; they did not have to prove that Trump himself had led it (of course, he didn’t valiantly enter the Capitol to “save democracy” – his words – but tweeted the revolution from the safety of the White House).
We know that few Maga supporters will be swayed by the evidence – in fact, the entry ticket to Trump’s personality cult is precisely to deny that very evidence. But it is more disturbing that liberals still think that prudence dictates that Trump should run and just be defeated at the polls.
For one thing, the same liberals usually profess their commitment to the constitution – and the Colorado court has given an entirely plausible reading of that very document. Should it simply be set aside because supporters of a self-declared wannabe dictator threaten violence?
Some liberals also appear to assume that, were Trump to lose in November 2024, their political nightmare would stop. But someone who has not accepted defeat before, doubled down on the “big lie”, and ramped up authoritarian rhetoric is not likely to just concede. Would the logic then still be that, even if the law says differently, Maga supporters must somehow be appeased?
The more leftwing critique is the most interesting. Liberals are charged with having a Mueller moment again. By trusting courts to save democracy, they reveal how little faith they have in the people; they appear to hope that, magically, wise old men (it’s usually men) like Robert Mueller, acting for more or less technocratic “institutions”, will solve a challenge through law when it should be solved politically.
The only question is: by that logic, are any measures meant to protect democracy but not somehow involving the people as a whole as such illegitimate? Had Trump been impeached and convicted after January 6, would anyone have made the argument that this was the wrong process and that he just should keep running in elections no matter what?
Countries other than the US are more comfortable with the notion that politicians or parties expected to destroy democracy should be taken out of the democratic game. The threshold for such a decision has to be very high – clearly, there’s a problem if attempts to save democracy are themselves undemocratic. Here the Colorado decision is more vulnerable: as one of the dissenting judges pointed out, Trump might not have been given due process; even prosecutor Jack Smith, a master legal chess player, is not going after Trump for insurrection.
Three factors can mitigate anxieties about undemocratic measures to save democracy, though: one is that, before a drastic decision like disqualification is taken, an individual has to exhibit a very consistent pattern of wanting to undermine democracy. Check, for Trump.
Second, there has to be some room for political judgment and prudence: disqualification is not automatic and not for life; in theory, Congress could pass an amnesty for Trump in the name of democratic competition.
Third, banning a whole party can rightly make citizens with particular political preferences feel that their voices are silenced; in this case, though, no one is removing the Republican party. And, of course, two Trump epigones remain on the ballot.
Jan-Werner Müller is a professor of politics at Princeton University. He is also a Guardian US columnist
This article was amended on 22 December 2023 to clarify the distinction between impeachment and conviction
