The dilemma of the Supreme court
The Supreme Court is about to hand down a decision of rare importance. It does not just concern the presidential elections in November. This decision will determine how American institutions will be perceived by future generations.
Will it be faithful to the intentions of the drafters of the 14th amendment, who wanted to protect the nascent democracy and safeguard their country from coup attempts, or will it give in to pressure from Trump's supporters by handing down a biased ruling that runs counter to the intents of the founding fathers?
The problem is the classification of the events of 6 January 2021 as "rebellion" and "insurrection", and consequently the application of the penalty of ineligibility to Donald Trump.
-The first aspect is legal: will the Court comply with the intention of the drafters, which was to prevent any individual who had engaged in insurrection from holding an official position in the State? The method currently dominant in this higher court is what is known in continental Europe as "exegesis", and in the United States as "originalism or textualism". It consists of seeking out the will of the writers of the text rather than adapting it to the contemporary context.
The drafters of the 14th Amendment in 1861, informed and cultured citizens of the mid-nineteenth century, intended not only to remove the former Southern leaders of the Civil War from power, but also to protect the young American republic from coups de forces such as those that had occurred - very recently for them - in France in 1794, 1799 and 1851. The events of 6 January 2021 are strikingly reminiscent of Napoleon Bonaparte's "coup" of 18 Brumaire:
- Like him, Trump found a pseudo-legal pretext by claiming that the presidential election had been stolen in 2021.
- As on 18 Brumaire, we witnessed with the riot of 6 January, an attempt to take control of the assemblies, by tumult and intimidation and by the illicit action of one of its presidents.
- As during the three coups d'état in France, the army did not intervene to defend legal power. And in 2021, the matter was settled by the Capitol Guard, with no need for reinforcements from the federal army.
For all these reasons, in the face of this test of democracy, it would seem logical for the Supreme Court to implement the letter of the 14th Amendment and rule Trump ineligible. However, it is not certain that the Supreme Court will choose this path, as it faces an eminently political dilemma. Should it run the risk of ruling out a candidate with a chance of winning the presidential election? Wouldn't it be better to leave the decision to the electorate? That is certainly what Donald Trump's supporters will tell him, pointing out in passing that three judges were appointed by him when he was in power, implying that they owe him their allegiance. This all-too-common argument is deplorable, all the more so because it makes acceptable the partiality of the members of this superior court who have sworn an oath of impartiality. It would be a pity if this immense country, to which we owe one of the first democratic constitutions, drafted in 1787, two years before the French Revolution, did not show itself capable of rising above partisan quarrels.
So what is the most logical decision, both legally and politically?
There are two possible scenarios.
Either the Supreme Court, true to its values, declares Trump ineligible. This scenario seems likely.
The Supreme Court has already refused to overturn the results of the presidential elections, as requested in several states and by various republican representatives, following appeals from the President himself, before the uprising on 6 January 2021.
Then, vice president Mike Pence’s attitude is also a good sign. When Trump committed his rebellion by claiming that the election had been stolen by fraud, the appearance of legality caused by his arbitrary assertion would have required him as Vice President and in charge of certifying the election, to reverse the result and be approved by Congress. But he refused to commit such a violation of the Constitution, which would also have amounted to perjury. This proof that this ultra-conservative man intended to respect the democratic will of the drafters of the Constitution and its amendments, and that with them, he intended to protect his country against coups d'état.
In the face of this ultimate test of democracy, the effectiveness of the fourteenth amendment demonstrates the analytical skills of the drafters of the Constitution, which provide an opportunity to sanction this first coup attempt in the history of the United States. We should salute their efficiency and foresight, but also their prudence, since the same drafters also leave Congress the option of overturning this decision, if the House of Representatives and the Senate obtain a two-thirds vote. In the present situation, this is unlikely to happen.
The other scenario is that the Court rejects the ineligibility and leaves it to the ballot box to judge Donald Trump's candidacy. In this case, it would be making a "contra legem" decision in violation of the law. The members of the Supreme Court would mask reality by distorting the facts and grossly minimising them. They would argue that it was neither a rebellion nor a call for insurrection, and that it was no big deal because he did not succeed after all.
The legal and political analysts all agree that this second scenario should be ruled out: we are dealing with a problem of qualification of facts, and there is nevertheless one obvious fact: Trump wanted to reverse the result of a regular election, to do so he called for a riot and tried to join the insurgents, only being prevented from doing so by the opposition of his driver, a member of the secret service.
In another serious development, America and even the whole of Europe heard a recording of a conversation between President Trump and an election official in Georgia, in which he said in essence: "You have to get me 15,000 votes. Find them for me and that will overturn the election". This, of course, without knowing that he was being recorded. And everyone heard his insistence in the face of his interlocutor's embarrassed, then indignant, reaction.
This fact is part of his rebellion against the legality of a federal election. And the consequences of this act therefore go beyond the borders of the State.
Finally, the fact that Trump failed does not make him innocent. As regard to the law, the failure of the attempt does not eliminate the crime.
In conclusion
The answer to the political question implicit before the Supreme Court - whether to declare Trump ineligible or to refer the matter back to the people - seems to us to be as obvious as the answer it must give to the legal question.
Besides if the Supreme Court rules on ineligibility, its decision will be final and Trump will have no recourse.
par
Brigitte Ades
Jean Dubois
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