The Colorado Decision: Heads Trump Wins. Tails America Loses.
Donald Trump must be allowed every possible legal maneuver in his quest to subvert American democracy. But the law must never apply to Trump, because doing so might make him stronger.
1. The Sunshine State
I don’t have a firm opinion about the Colorado Supreme Court’s ruling that Donald Trump cannot appear on the state’s presidential ballot.
As a matter of law, I can see it both ways. As a matter of politics, I can see it both ways, too. And also, there is a large-scale, philosophical question at the very heart of this decision: What is the purpose of the rule of law?
Let’s take those three questions in order.
I understand why people might view the decision and say, “Wait a minute, that doesn’t seem right.”
But we do have a legal process and in this case, the legal process was followed assiduously. There were no shortcuts, no extraordinary maneuvers.
So ask yourself this: All throughout December 2020, everyone insisted that, no matter how foolish or baseless President Trump’s claims might seem, he was entitled to pursue the legal process vigorously to its end.
Why is that not true in this case? Why is it that Trump is entitled to have his day in court, but the forces looking to apply different laws to a different end are not?
The answer is that this isn’t really about people respecting process—it’s about the result. And many of the people who insisted that Trump could pursue all available legal remedies in 2020 because they hoped for one result are today outraged that people in the state of Colorado pursued legal remedies and won a result they hoped to avoid.
So to be clear: The people complaining about the result in Colorado are complaining not about the legal process, but the legal result.
And what is the fix for that?
There is none.
If a legal process you have agreed upon ahead of time produces a result you do not like—tough noogies. You can argue that the result was poorly decided, or unwise. You can make the case that it will create problems. But you can’t say, “How dare these judges make this decision. They have done something outrageous that shakes our democracy to its very foundation.”
I am sorry, but if the legal process was good enough to decide Bush v. Gore and needed to allow Donald Trump to attempt to overturn the 2020 election via various legal maneuvers, then it’s fine for Colorado to work through proper channels, using existing law, to attempt to remove an insurrectionist from the ballot.
And if the U.S. Supreme Court overturns this decision, then we’ll have to live by that, too.
The politics of this decision are unknowable.
It is plausible that the decision could energize Trump voters and also scare swing voters into supporting him against a system they believe has run amok.
It is also plausible that the Colorado decision might freak swing voters in the other direction: that, by highlighting Trump’s insurrection, they become more convinced that he is an agent of chaos who cannot be trusted again with the power of the presidency.
There’s even a third option: that this decision won’t matter either way. Maybe the SCOTUS overturns it and/or five days from now we’re on to the next upheaval when Trump says he wants to personally oversee the execution of blood traitors or some such.
How many times in the last three years have people insisted that some moment will either doom Trump or assure his victory?
Have you ever noticed how, whenever Trump does something terrible, there is always an argument that holding him accountable can only help him?
You can’t impeach him in 2020, because it’ll just make him stronger.
You can’t impeach him in 2021, because you’ll turn him into a martyr.
You can’t raid Mar-a-Lago to take back classified documents, because you’ll rile up his base.
You can’t prosecute him for crimes X, Y, and Z, because it’ll make Republican voters love him more.
There is a strange, self-limiting, helplessness to that thinking: A wicked man does immoral and illegal things—and society’s reaction is to say that we must indulge his depredations, because if we tried to hold him accountable then he would become even worse.
Is there any other aspect of life in which Americans take that view?
That’s not how parents deal with children.
It’s not how regulatory agencies deal with corporations.
And it’s not how the justice system deals with criminals.
The only analogue I can come up with is foreign policy: There have been times when American foreign policy has sought to give foreign dictators what they want in order to prevent them from making more trouble.
I am not an expert, but my impression is that this mode of operation has not often led to good outcomes.
I get that this stuff is complicated and that we have a lot of ideas in tension with one another. But that’s part of what we do here at The Bulwark. Every day.
You should join us. We’ll help you see around corners.
2. The Law
What is the purpose of the law, broadly speaking?
You might be tempted to say “justice.”
But justice is an ideal—one we should strive for but can never reach. True justice is ultimately a theological concept: It belongs to the Almighty and no one else.
No, the law is a tool for channeling and applying power. This means different things in different governing systems.
In the Western system, you could say that the point of the law is this:
To uphold a framework for liberalism by which a people can self govern within defined rules that protect the inalienable rights of minorities, majorities, and individuals.
So what do we do if the application of the law somehow undermines that framework?
I wrote about this question over the summer in a piece called “The Keynesian Case for Pardoning Trump.”
When the victorious leaders of Britain, France, and the United States met to figure out what their terms for the peace would be, the principal point of contention was reparations. The short version of which is this:
Germany had slit Europe’s throat. The Kaiser’s foolishness and aggression had destroyed the economic and imperial orders of the civilized world and had culled an entire generation of young men. The damage that resulted from Germany’s choices was incalculable. The French and British tried to count it anyway and came up with the sum of $120 billion, which they believed would compensate them for what had been lost.
Keynes was at the negotiations in Versailles as part of the British delegation and by his reckoning, the most Germany could realistically be expected to pay the Allies was $2 billion. This gulf—between the $120 billion Germany owed as a consequence of its actions and the $2 billion it could realistically pay—created the fissure that would lead to the next war. . . .
Each of the parties had a perfectly reasonable view of wartime debt. Yet these reasonable-but-conflicting views created the conditions that all but assured another world war.
Here is the big point I was trying to get people to see:
Obligations and rules which are necessary in order for systems to function in ordinary times can become dangerous in times of crisis.
Honestly, instead of recapitulating the entire argument, I’d appreciate it if you read the piece again. It’s worth your time. I promise.
I want to close by noting yet another asymmetry in American life.
Here is a partial list of things we are often told must be done in order to prevent Americans from choosing to elect a manifestly unfit, aspiring authoritarian:
National Democrats should stop talking about certain issues that matter to them.
Congressional Democrats should have crossed the aisle and saved Kevin McCarthy.
Local Democrats should stop governing in ways which their liberal communities prefer so as to avoid offending Republicans in other states.
The Manhattan district attorney should not have brought an indictment against Donald Trump.
Privately-held corporations should conduct themselves so as to be pleasing to white, working-class voters and should abstain from marketing themselves in ways that might appeal to disfavored groups.
Joe Biden should pass even more bipartisan legislation.
Joe Biden should not have tried to forgive federal student loans.
Joe Biden should replace his vice president, even though she has conducted herself honorably.
The Colorado Supreme Court should have allowed Donald Trump to be on the state’s presidential ballot.
It is (we are told) because of actions like these that tens of millions of Americans will vote to make Donald Trump president 11 months from now.
Note what is not on that list: Anything that is imperative for Republican elected officials or Republican voters to do in order to cause the electorate to reject Trump.
It is simply assumed that those people lack agency. That they are automata who can only be expected to do one thing: that they will make their decisions about the future of the United States purely in reaction to inputs from their betters.
They simply have to vote for Trump because the girl at Starbucks has a nose ring and a name tag with pronouns. Or because Disney put a gay kid in Strange World. Or because the Colorado Supreme Court issued a ruling they neither liked nor read.
This is a profoundly paternalistic, bigoted view of Republicans.
But also, maybe it’s true?
I hope not. Because Republicans make up a big chunk of this country. If that’s really the state of one of our political parties, then we’re screwed. And nothing the Colorado Supreme Court did is going to matter, either way.
3. The Christmas Elite 8
By now I assume you’ve listened to all 8 of the remaining songs in our bracket. We’re going to do the entire second round today. Tomorrow will do the Final Four.
Don’t forget to fight about your wrong opinions in the comments.
Just we’re clear: There are right and wrong answers for each of these matchups. Obvious ones.
I’m trusting you to make good choices. Don’t disappoint me.