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**JANUARY 2, 2024**
On the Prospect website
After Section 3 Comes Section 2
The election lawsuit about the 14th Amendment that you might not know
about BY MICHAEL MELTSNER
Neoliberalism and Education
A conversation between Robert Kuttner and Cathie Martin BY ROBERT
KUTTNER
The Electric-Vehicle Transition Is Quietly Surging Ahead
Nearly 10 percent of cars sold in 2023 were EVs. BY RYAN COOPER
Meyerson on TAP
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**** Trump and the Court
The justices may well have to rule four times this year on his
eligibility for occupying the White House or prison.
There's a relatively easy way that the Republican justices on the
Supreme Court can hope to survive their upcoming encounter with the
vexing question of Donald Trump. They will soon have two cases before
them, not one. The first will require them to rule on Trump's claim
that since he was then president, he's immune from prosecution for his
incitement of the January 6th riot. The second will require them to rule
on whether he can be tossed off state ballots in consequence of his
running afoul of the 14th Amendment, Section 3, of the Constitution.
The course of least resistance for the GOP Six is to split the
difference: Rule that Trump has no immunity from Jack Smith's charges;
and rule that Trump cannot be stricken from state ballots. The first
ruling will demonstrate the Court's belief in the rule of law, much to
Chief Justice John Roberts's relief. The second will demonstrate to
Trump and his base that the justices should not be cast into utter
darkness.
The second-allowing Trump to stay in the race-will require some
fancy footwork. Amendment 14, Section 3, says that no one can "hold any
office ... who having previously taken an oath ... to support the
Constitution of the United States ... shall have engaged in insurrection
or rebellion against the same or given aid or comfort to the enemies
thereof." The way around this is to argue that Trump's efforts to
illegally reverse the outcome of the 2020 election, to call for and
incite the attack on the Capitol, and to refuse for several hours to
call it off don't constitute an insurrection or rebellion. Then again,
if the word "same" in "against the same" refers, as it literally seems
to, to the Constitution, then it was clearly an insurrection, as it
sought to supplant the Constitution's clear language for selecting a
president. (The language for selecting the president is as
straightforward as the process itself is byzantine.)
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Then there's a further wrinkle. If the Court rules expeditiously that
Trump is not immune from Smith's charges, Trump may well have been
convicted of attempting to violently reverse the outcome of the 2020
election by the time the Republican Convention rolls around in July. If
Trump is found guilty, he will surely appeal, and that appeal will also
surely be put before the Court on an urgent basis. And it's more than
an academic possibility that some states will only then move to toss
Trump off their ballots, requiring the Court to revisit the
constitutionality of a Trump second term yet again. That would make four
times that the Court will have to rule on variations of
**U.S. v. Trump** this year.
The key to those rulings will surely be the three justices whom Trump
nominated. Voting to uphold Smith's right to try Trump and, if needs
be, convict him will serve as a demonstration that they don't exempt
their nominator from the law. Voting to let Trump run and, should the
gods punish us, win will, well, significantly negate that demonstration.
But in all of this, the other six justices will play an ancillary role.
For political reasons that I would understand and not denigrate, I
don't think the three Democratic nominees would want to be the three
votes for keeping Trump off the ballots if the six Republicans go the
other way. I can't imagine that Alito and Thomas would ever vote to
keep Trump off the ballots, and Roberts would likely take his lead from
the Trump-nominated three. It all really will be up to Gorsuch,
Kavanaugh & Barrett, attorneys at law.
Precisely, and perhaps only, because Republican justices hold or affect
an allegiance to originalism and literalism in constitutional questions,
the question of Trump's legal eligibility should plop the Republican
justices into one helluva constitutional morass. The Republicans will
likely emerge from that by giving Trump a pass, but at least by their
own "follow the text" dogma, they'll reek of double standards and bad
faith.
~ HAROLD MEYERSON
Follow Harold Meyerson on Twitter
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