And they should thoroughly consider the ramifications of their actions if they are asked to intervene against the will of the voters.
Donald Trump’s forthcoming criminal trials are poised to become an all-consuming gravity well, the inescapable maw of which will soon capture the nation’s attention. But while we’re still perched on its event horizon, it would be wise to re-examine the roles we’re all about to play in this immensely consequential saga. Those of us who have no role other than that of spectator should preserve that safe distance from the spectacle that is about to unfold.
Why anyone who is not central to this kaleidoscopic nightmare would want to insert themselves into it is hard to fathom, but some of the nation’s secretaries of state seem inclined to do just that.
A recent article published in the Pennsylvania Law Review from the Federalist Society’s William Baude and Michael Stokes Paulsen argues that Donald Trump has been disqualified from access to the presidential ballot based on their reading of the 14th Amendment. The authors maintain that the language prohibiting figures who “engaged in insurrection or rebellion against” the United States or had “given aid or comfort to the enemies thereof” pertains to Trump’s actions on and leading up to January 6, 2021. The authors believe their theory is “self-executing,” by which they mean U.S. elections officials don’t need to seek permission or special authority to bar Trump from the ballot — indeed, their oaths oblige them not to. In the real world, their theory would need to be executed by the many secretaries of state. To describe such an outcome as fraught would be a profound understatement.
Many critics of Donald Trump’s various prosecutors insist that he is being persecuted merely for exercising his right to free expression. That, or his pursuers are seeking to relitigate the former president’s second impeachment by other means. I find these arguments unpersuasive. But the 14th Amendment solution to the Trump conundrum most certainly seeks to remedy Congress’s failure to convict Trump on the single count with which the federal legislature charged the president: “incitement to insurrection.” Moreover, it seeks to impose the consequences associated with a conviction on that charge despite the Senate’s decision to acquit the former president. Secretaries of state who take the approach Baude and Paulsen recommend could be accused of seeking to nullify the Senate’s verdict.
On more prudential grounds, secretaries of state should thoroughly consider the ramifications of their actions if they, state-level elected officials, are asked to intervene against the will of the voters. Those are the same voters on whom their legitimacy rests and from whom they derive their authority. Only a handful of the Union’s most politically ambitious Democratic secretaries of state would ever consider such a grand usurpation of authority, the result of which would be to keep Trump off the ballot in, at most, a handful of states. What electoral outcome would that produce? How would the Constitution hold up amid the crisis their actions would precipitate? What unforeseen consequences might this action produce?
Almost all relevant players in this drama are already committed to their respective paths, their preferences very much notwithstanding. Donald Trump must stay his course if only to evade the consequences of his actions by once again taking control of the justice system that is prosecuting him. His prosecutors do not appear to believe that they can allow the criminal allegations of which he is accused to go unpunished. The courts are compelled to seek a speedy resolution to these forthcoming proceedings, even if that speed interferes with the designs of the defendant, the prosecution, or both. Each of these performers have drawn their share of critics, many of whom appear to think that Trump, his prosecutor, and the courts could all have exercised their discretion in ways that might have defused the conflict we’re about to witness. The figures who are closest to these undesirable circumstances do not appear to agree, and their conduct betrays the complexities of their respective dilemmas.
But America’s secretaries of state do have agency, discretion, and license at this stage of the forthcoming crisis. They should exercise all with the goal of extricating themselves from it.